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INTRODUCTION The key purpose of this document is to provide an overview of employment law where it relates to the small and medium organisations. The document is primarily targeted at Merton Unity Network's ethnic minority member groups. The information contained in this document is accurate at point of publication. However, it is not a full or definitive statement of the law and is not intended as a substitute for professional advice, or amount to legal advice to any person or organisation on a specific case or matter. Merton Unity Network will therefore not be responsible for any user actions / inactions resulting from use of the information contained in this document. In addition, no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Merton Unity Network. The Network will try to provide annual updates of this document where necessary. Alternatively, updates can be obtained from the Network's website. Further copies of this document can be obtained free of charge by member groups, by telephone to Patricia Anderson on 020 8648 9551. Employment Law – An Overview A Guide For Small/Medium Voluntary Organisations' Employers And Employees [November 2004] AREAS Employment Law  Application – Recruitment & Selection
Employment Contract
Equality Laws
Foreign Nationals Working In the UK
Health & Safety
Data Protection
Disciplinary & Grievance
Dismissal
Paternal Legislation
Rehabilitation & Offenders
Transfer of Undertaking
Trade Union membership and activities
Recent and forthcoming changes Acknowledgement A-Z of employment law
Application – Recruitment & Selection
The organisation must ensure that it has proper procedures in place covering:
Other procedures that must be in place to enable applicant's access to an appeal are:
The Employment Contract
The employee must be provided with written particulars of the key terms of their employment no later than two months if their employment continues for a month or more with the employer. The employment must state, amongst other things:
Duties of the Employer
Part-time Work
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 The Regulations aim to ensure that part-time workers are not treated less favourably than comparable full-timers, unless the less favourable treatment can be justified on objective grounds. Principally, this means they should:
Employees will be held to be unfairly dismissed (or selected for redundancy), regardless of age or length of service, if the main reason for the dismissal is that:
Fixed-term
Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 say that fixed-term employees should not be treated less favourably than comparable permanent employees on the grounds they are fixed-term employees, unless this is objectively justified. Any such less favourable treatment must be actually necessary to achieve a legitimate objective and must also be an appropriate way to achieve it. Employees who believe their rights are infringed under these Regulations may present their case to an employment tribunal. They apply to employees on contracts that last for a specified period of time or will end when a specified task has been completed or a specified event does or does not happen. Examples include employees covering for maternity leave and peaks in demand and employees on task contracts such as setting up a database. An example where less favourable treatment may be justified could be the disproportionate cost of giving a company car to an employee on a short fixed-term contract just because the comparator has one. Less favourable treatment may be assessed in one or two ways: either each of the fixed-term employee's terms and conditions of employment should not be less favourable than the equivalent treatment given to their comparator or the fixed-term employee's overall package of conditions should not be less favourable. Fixed-term employees have a right to:
The end of a task contract that expires when a specific task has been completed or a specific event does or does not happen counts as a dismissal in law; so does non-renewal of a fixed-term contract concluded for a specified period of time.
Working time
The Working Time Regulations 1998 provide rights to:
At present, "young workers" (those over the minimum school leaving age but under 18) are entitled to 12 consecutive hours rest between each working day, two days' weekly rest and a 30-minute in-work rest break when working longer than four and a half hours, plus four weeks paid annual leave. Following a period of public consultation, the following changes for young workers will take effect in 2003:
Employees may complain to an employment tribunal of unfair dismissal, regardless of their length of service, if they are dismissed for exercising rights under these regulations; and workers who are not employees may complain that they have suffered a detriment if their contracts are terminated for this reason. Both employees and workers who are not employees are also protected from other detrimental action or deliberate inaction by their employer.
Time Off Work
Time off work, except for reasons of sickness or injury, must be only for 'reasonable' periods to minimise damage to the employer's business due to the effect of the employee's absence. Employees may take off work for a number of reasons:
Flexible Working
The right to apply to work flexibly and the duty on employers to consider requests seriously From April 2003, parents of children under six or disabled children under 18 have the legal right to request flexible working patterns and their employers will have a duty to seriously consider their requests. In order to qualify for this right an individual must:
Flexible Working Requests Where such a request is made there will be a statutory procedure, which the employer must follow:
If the request is agreed, the new working pattern forms a permanent change to the employee's terms and conditions. Employers can reject an application where they have a clear business reason to do so. Acceptable business grounds are specified in law and an employer must provide a written explanation setting out why the ground applies in the circumstances. To decline the request the employer will be required to show that one or more of the following reasons apply:
Where an agreement to alter working hours is made it will be considered as permanent unless the employee and employer agree to a time limit for the variation or subsequently agree to it being amended. Disabled Children – Parents of disabled children will have the flexibility to take leave a day at a time or longer if they wish. The entitlement to parental leave for disabled children is 18 weeks. A disabled child is a child for whom disability living allowance is awarded. Time Off For Dependants Equally the existing legislation regarding unpaid time off for caring for dependants is also unaltered and this is summarised below: An employee has the right to take a reasonable amount of unpaid time off during working hours to deal with incidents involving a "dependant". A "dependant" means an employee's parent, wife, husband or partner, child or someone who lives as part of the family, for example someone for whom the employee is the main carer. The employee has the right to time off:
Equality Laws
Currently these are:
Under equality laws it is important that the applicant is able to show 'detriment' in order for a case to be made against an employer. Discrimination can either be direct or indirect. Direct discrimination occurs when on the grounds of race, sex, marital status, disability, sexual orientation and religion, a person is treated less favourably than a person from a different racial group, gender, marital status or ability/disability. There is no defence for direct discrimination. 'On the grounds of' does not refer to the employers' motive or reason but the intent to provide less favourable treatment. The relevant question is 'would the complainant have received the same treatment but for his/her sex, race, etc.?' Indirect discrimination occurs where an employer applies a requirement or condition which would apply equally to a person of the opposite sex, racial group, etc., but which is such that the proportion of applicant from the applicant's sex, marital status, racial group, disability who can comply with it is considerably less than proportion of persons from the opposite sex, marital status, racial group, etc. Applicants must show that they suffered a 'detriment' as a result of being unable to comply with the requirement or condition imposed. Employers can avoid liability by showing the condition or requirement was 'justifiable' irrespective of sex, etc. Comparisons used must show that the same or not materially different. Harassment is not strictly defined by law but refers to 'unwanted conduct of a sexual, racial, etc., nature or other conduct based on sex, race, etc., affecting the dignity of women and men at work'. Applicants can seek redress under equality law based on their initial experience of the organisation. For example, an applicant for a job has the right to seek redress if he/she can show that on the grounds of race, sex, disability they were treated less favourably by the practices of the organisation.
Discrimination means treating someone less favourably on any of these grounds. It includes applying apparently neutral provisions, criteria or practices, unless they can be objectively justified which, though applied equally to all, have a disproportionately detrimental effect on particular racial groups or on one sex or on married people (as the case may be) and which cannot be shown to be justifiable (for instance to be job-related). Discrimination also includes victimising someone who has made a complaint under these Acts or under the Equal Pay Act 1970 (see Equal Pay). These three Acts cover discrimination by employers in recruitment, in all aspects of their treatment of existing employees (including pay, training and access to promotion) and when terminating employment. Post-employment discrimination Genuine Occupational Qualification (GOQ) Discrimination may be lawful in certain cases:
Sex Discrimination
Under the Sex Discrimination Act 1975 (as amended), generally employers should not discriminate on grounds of sex, marriage or because someone intends to undergo, is undergoing or has undergone gender reassignment. Under the Sex Discrimination Act 1975 (Amendment) Regulations 2003, which came into effect on 19 July 2003, post-employment discrimination on the basis of sex is unlawful.
Race Discrimination
The Race Relations Act 1976 generally makes discrimination by employers on racial grounds unlawful – that is, discrimination on grounds of race, colour, nationality (including citizenship) or ethnic or national origins. Under the Race Relations (Amendment) Act 2000, public authorities and organisations which provide services on their behalf must "have due regard for the need to eliminate unlawful discrimination and promote equality of opportunity and good race relations". This means they must consider the racial equality implications of all relevant activities (including the implications of grant cuts), and take active steps to promote racial equality. Organisations which receive public sector funding or carry out activities in partnership with public bodies are increasingly being required under grant or contract conditions to implement new procedures for recruiting staff and service users, monitoring, etc. There are limited exceptions; for instance, where a job has to be done by a person of a particular sex or from a particular racial group for reasons such as authenticity in dramatic performances. The Race Relations Act does not apply, except for victimisation, to people employed to work in a private household. Both Acts permit employers, under certain conditions, to train employees of one sex or of a particular racial group in order to fit them for particular work in which their sex or racial group has recently been under-represented; they may also encourage the under-represented sex or racial group to take up opportunities to do that work.
Disability
The Disability Discrimination Act 1995 employment provisions require employers with 15 or more workers (including casuals, agency workers and freelance workers as well as employees) to make reasonable adjustments to workplaces and work practices so that a disabled person is not disadvantaged in employment or in applying for work. What is "reasonable" depends on each employer's situation, but the duty to make adjustments is especially high where an existing worker has a disability or becomes disabled. Discrimination also occurs when an employer fails to make a 'reasonable adjustment' for a disabled person, and cannot justify the failure. A reasonable adjustment is any step or steps an employer could reasonably take to prevent arrangements made by him/her or physical features of premises occupied by him/her from putting a disabled person at a substantial disadvantage in comparison with a non-disabled person. People who have, or have had, disabilities and believe that is why they have been discriminated against in employment matters may make a complaint to an employment tribunal. From 1 October 2004, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 make a number of changes to the DDA. These include:
The Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003, which came into effect from 14 April 2003, provide that anyone who is registered with the local authority as blind or partially sighted, or is certified as blind or partially sighted by a consultant ophthalmologist, is deemed to be disabled for the purposes of the DDA. They will not have to show that the condition has a substantial adverse effect on their day-to-day activities.
Service delivery. As well as employment, the DDA also covers provision of goods, services and facilities (all referred to here as services). From 1 October 1999, providers of services have to:
Under the draft Disability Bill published on 3 December 2003:
Equal Pay
The Equal Pay Act 1970 (Amendment) Regulations 2003 came into force on 19 July 2003. Their main changes are:
Individuals may complain to an employment tribunal under the Equal Pay Act 1970 up to six months after leaving the employment to which their claim relates. They may claim arrears of remuneration or damages. A woman is employed on 'like work' with a man if her work is of the same or a broadly similar nature, and any difference between the things they do is not of practical importance in relation to their terms and conditions of employment. It is for the employer to show that any difference is of practical importance. If it is established that the work is like work, or is rated as equivalent, an employer may still show that any differences between the man's and woman's contracts are genuinely due to a 'material difference' (other than the difference of sex) - qualifications for example. If a claim is made under the equal value provisions, the employer can also justify a difference in pay by showing material factors not attributable to personal qualities - an example could be the need to pay a computer programmer more than a clerical supervisor because a good programmer could not be obtained for less.
Sexual Orientation
The Employment Equality (Sexual Orientation) Regulations 2003 came into effect on 1 December 2003 – which makes discrimination in employment and vocational training on the basis of sexual orientation unlawful. Discrimination based on perceived sexual orientation is also unlawful. "Discrimination" includes direct discrimination, indirect discrimination, victimisation and harassment. Sexual orientation is defined as an orientation towards persons of the same sex, persons of the opposite sex, or persons of the same sex and of the opposite sex. It is lawful to discriminate in recruitment, promotion or training on the basis of sexual orientation where being of a particular orientation can be shown to be a genuine occupational requirement for a position. It is lawful to provide benefits, such as pension provisions, solely for married couples. Regulation 7 – a controversial provision that was not in the draft regulations sent out for consultation – allows discrimination on the basis of sexual orientation in "employment for the purposes of an organised religion" to comply with the doctrines of the religion or "to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers". Positive action provisions (regulation 26) allow people of a particular sexual orientation to be given preferential access to training or to be encouraged to apply for particular work, where such action prevents or compensates for disadvantages linked to that sexual orientation.
Religion or Belief
From 2 December 2003 the Employment Equality (Religion or Belief) Regulations 2003 outlaw discrimination in employment and vocational training on the basis of religion or other belief. Religion or belief is defined as "any religion, religious belief, or similar philosophical belief", which appears to include fringe religions and cults and could include political beliefs. The limits will need to be defined by the courts. There are exemptions where being of a particular religion or belief is a genuine occupational qualification for a post in an organisation which has an ethos based on religion or belief, or where being of a particular religion or belief is a genuine and determining occupational requirement for a post in a non-ethos based organisation (regulation 7). Positive action provisions (regulation 25) allow people of a particular religion or belief to be given preferential access to training or to be encouraged to apply for particular work, where such action prevents or compensates for disadvantages linked to that religion or belief. The Chartered Institute of Personnel and Development has advised employers to be aware that anything that offends against a religious belief or practice could breach the law. This could include, for example, requiring all staff to shake hands with visitors or clients, or not having non-alcoholic drinks available at a work event. The Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003, which came into effect on 1 September 2003, allow foundation or voluntary schools with a religious character to give preference in the appointment, promotion or remuneration of teachers to people with religious beliefs in accordance with those of the school, or who attend worship in accordance with those beliefs, or who give or are willing to give religious education at the school in accordance with those beliefs. In appointing or terminating employment of a teacher, conduct incompatible with the religion may be taken into account.
Foreign Nationals Working in the UK
From 1 May 2004 new rules on preventing illegal working are in effect, amending section 8 of the Asylum and Immigration Act 1996. From 1 May 2004 also Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia have joined the EU and their nationals have the right to work in the UK. The employer has to carry out a check (as above) to show they are a national of the country. If they are from any of the countries other than Cyprus and Malta, the employer should advise them to register immediately with the Home Office's workers registration scheme. The employer must check within one month of the person starting work that he or she has registered with the scheme. A copy of the employee's registration certificate will be sent to the employer and should be kept. For people who start work on or after 1 May 2004, a national insurance document on its own is no longer enough to provide the employer with a statutory defence if the person is subsequently found to be working illegally. Under the new rules, which take effect for employees who start work on or after 1 May, there are two types of documents. If a document is on list 1 (the secure list) the employer only has to see and keep a copy of one document. If a document is on list 2, the employer has to see and keep copies of two of the documents. List 1 includes a UK passport, a passport or other travel document showing the person has the right to remain and work in the UK, a passport or national identity card showing the person is a national of a European Economic Area country or Switzerland, or a resident permit issued by the UK to a national of an EEA country or Switzerland. List 2 has two sets of combinations. One is based on an official document (P45, P60, national insurance card or letter from a government department) giving a permanent national insurance number, plus another document such as a UK birth certificate or naturalisation certificate or certain documents from the Home Office. The other combination is based on a work permit issued by Work Permits UK, plus a passport or Home Office letter showing the person can remain in the UK and take the employment in question. As with the previous rules, employers must avoid racial discrimination and must thus treat everyone equally. Documents cannot be requested only from people who are assumed not to be British.
Parental Legislation
Maternity, Paternity and Adoption Leave Parental leave Existing regulations exist in respect of Parental Leave and these continue to apply in addition to the above Regulations regarding Maternity, Paternity and Adoption leave. An employee, male or female, will have a right to parental leave if he or she has one year's continuous employment and
Wherever possible, employers and employees should make their own agreement about how parental leave will work in a particular workplace. Such agreements can improve upon the key elements set out above but they may not offer less. Employees can complain to an employment tribunal if their employer prevents or attempts to prevent them from taking parental leave. They are also protected from dismissal or detrimental treatment for taking or seeking to take it.
Maternity (includes changes from 6 April 2003) It must first be remembered that:
An employer may not dismiss an employee or select her for redundancy on grounds related to pregnancy, childbirth or the fact that she has taken or sought to take maternity leave or because she does not return to work at the end of her leave in circumstances where her employer gives her insufficient or no notice of when her leave should end. A woman dismissed in these circumstances may make a complaint of unfair dismissal, regardless of her length of service. Employees also have the right not to suffer detrimental (unfair) treatment on grounds of pregnancy, childbirth or maternity leave. Maternity suspension Employers must take account of health and safety risks to new and expectant mothers when assessing risks in work activity. If the risk cannot be avoided, the employer must take steps to remove the risk or offer suitable alternative work (with no less favourable terms and conditions); if no suitable alternative work is available, the employer must suspend the mother on full pay for as long as necessary to protect her health and safety or that of her baby.
Maternity Leave A pregnant employee is entitled to at least 26 weeks Ordinary Maternity Leave and the right to return to work regardless of her length of service. To qualify, she must tell her employer no later than the end of the 15th week before the expected week of childbirth:
During the 26 weeks, she is entitled to benefit from all her normal terms and conditions of employment, except for remuneration (monetary wages or salary); and at the end of it, she has the right to return to her original job. If a redundancy situation arises, she must be offered a suitable alternative vacancy if one is available. If the employer cannot offer suitable alternative work, she may be entitled to redundancy pay; but if she unreasonably refuses a suitable offer, she could forfeit her right to redundancy pay. A woman who qualifies for ordinary maternity leave and who wishes to return to work before the date it is due to end must give at least 28 days' notice, unless her employer didn't notify her of when her leave should end.
A pregnant employee with at least 26 weeks service at the commencement of the 15th week before the expected week of confinement has the right to Additional Maternity Leave and may return up to 26 weeks after the end of her ordinary maternity leave. Their contract of employment continues but with limited terms and conditions. The additional maternity leave period begins at the end of ordinary maternity leave. This means a woman is entitled to be away from her job for 52 weeks in total. She does not have to notify her employer before the start of her ordinary maternity leave that she also intends to take additional maternity leave. However, when her employer notifies her of the end date of her leave, they will have based their calculation on the assumption that, if she is entitled to additional maternity leave, she will be taking it, and if she wishes to return at the end of ordinary maternity leave she must give at least 28 days notice At the end of additional maternity leave a woman is entitled to return to her original job or, if this is not reasonably practicable, to a suitable alternative job. If the employer cannot offer suitable alternative work, she may be entitled to redundancy pay; but if she unreasonably refuses a suitable offer, she could forfeit her right to redundancy pay. A woman who qualifies for additional maternity leave and who wishes to return to work before the date it is due to end must give at least 28 days' notice, unless her employer didn't give her adequate notice of when her leave should end. There is a period of Compulsory Maternity Leave of 2 weeks commencing on the day after the baby is born during which the law prohibits an employee for working.
Employment Rights During Maternity Leave
Contractual rights to (for example):
During periods of Additional Maternity Leave the contractual rights lapse except for the duty of trust and confidentiality. However statutory entitlements such as the accrual of holidays and continuous employment continue.
Returning to Work An employee is entitled to return to work following either Ordinary or Additional Maternity Leave without giving any prior notice as she will be returning to work on the date notified by the employer (see above). If returning from Ordinary Maternity Leave the employee has the right to return to the same job as previously held. If returning from Additional Maternity Leave she has the right to return to the same job or a similar position if her old position is not available. In reality it will be difficult for employers to justify that the original position is not longer available. The Employment contract is not automatically terminated for failure to give notice of intention to return to work following maternity leave. Statutory Maternity Pay (SMP) SMP is payable to employees:
There are two levels of Statutory Maternity Pay, the rates for which are dealt with later in this section.
Rates of SMP If the employee qualifies, then the higher rate applies for the first six weeks of SMP and the balance of twenty weeks is payable at the lower rate.
MA may also be paid to the self-employed and women who have recently left their jobs. MA can be paid for up to 26 weeks. MA is paid by the social security or Jobcentre Plus office. To qualify, they must have been employed or self-employed for 26 weeks out of the 66 weeks before the expected week of childbirth and have average weekly earnings of at least £30.
Geographical/custodial restrictions on SMP In the event that an employee goes outside the European Economic Area, or is taken into legal custody then the responsibility to pay SMP ceases, and if she returns or is released the employer are not liable to restart payment.
Paternity
From 6 April 2003, fathers and partners of mothers are entitled to paid paternity leave. Partner means a person who lives with the mother and the child in an enduring family relationship, but is not the mother's parent, grandparent, sister, brother, aunt or uncle. The extension of parental rights to partners in same-sex couples is a significant change. Fathers and partners are entitled to two weeks statutory paid paternity leave. This must be taken as a single period of one week or two consecutive weeks, and must be taken within 56 days of the birth or 56 days of the first day of the EWC, whichever is later. Odd days cannot be taken, or two one-week blocks. The pay is called paternity pay (birth) to distinguish it from the pay available to adoptive parents. For paternity leave periods starting on or after 4 April 2004 the weekly rate is either £102.80 or 90% of the employee's normal weekly earnings, whichever is lower. To be eligible for statutory paternity leave and pay the employee must have 26 weeks employment with the employer by the end of the 15th week before the EWC; must have average weekly earnings of at least £79; and must be the child's father and have responsibility for the child's upbringing, or if not the child's father must be married to or be the partner of the child's mother and must have the main responsibility (apart from any responsibility of the mother) for the child's upbringing. Either before or during the 15th week before the EWC or as soon as practicable after this, the employee must notify the employer how much paternity leave s/he intends to take, the EWC, and the date when s/he wants the leave to begin. This date can be the date of the actual birth, or a date falling a specified number of days after the birth, or a predetermined date which is later than the first day of the EWC. The employer can require this notice to be in writing. Employers can recover statutory paternity pay from the Inland Revenue in the same way as SMP.
Paternity Leave Where the Expected Week of Childbirth is after 6th April 2003 an employee will be entitled to take Statutory Paternity Leave so long as:
Where an employee chooses to take only one week of leave they forfeit the second week Paternity Pay Statutory Paternity Pay (SPP) will be payable to eligible employees during the 2 weeks leave. During their paternity leave employees may be entitled to one or two weeks' Statutory Paternity Pay (SPP). The qualifying conditions for SPP are the same as those for paternity leave: in addition, employees must have average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. SPP is payable by the employer but partly (or, for small firms wholly) reimbursed by the State. There is no equivalent benefit for employees who do not qualify for SPP or for the self-employed but there are special rules to allow fathers who are entitled to unpaid paternity leave to claim Income Support.
SPP is reclaimable in the same way as SMP.
Adoption
From 6 April 2003, pay and leave are available when a child is matched or placed for adoption. These are for the same period and at the same pay as statutory maternity entitlements for one adoptive parent, and for the same period and at the same rate as statutory paternity entitlements for the other parent. The maternity-equivalent leave and pay are called ordinary (and, if applicable, additional) adoption leave and adoption pay. The paternity-equivalent leave and pay are called paternity leave (adoption) and paternity pay (adoption). Where a married couple adopt jointly, they can decide who takes the adoption leave and pay and who takes the paternity leave and pay (adoption). (At the moment, only married couples can adopt jointly.) Where there is one adoptive parent that one takes the adoption leave and pay, and their partner, if they have one, takes the paternity leave and pay (adoption). The definition of partner is the same as for paternity leave. Adopters and partners must have been employed by their employers for at least 26 weeks ending with the week when an approved adoption agency notifies the employee that s/he has been matched with a child for adoption, or the week when the child is placed for adoption. Adoption pay and leave are not available when the child is known to the adopter, for example a stepchild or foster child. Special rules apply where a child is adopted from overseas. To be entitled to adoption pay or paternity pay (adoption) the employee must have average weekly earnings of at least £79. Employers can recover statutory adoption payments from the Inland Revenue in the same way as SMP.
Adoption Leave Where an employee is successful in adopting a child and they have been notified by the Adoption Agency, they will be entitled to take leave as long as:
Additional Adoption Leave is a period of up to a further 26 weeks which runs concurrently with the Ordinary Adoption Leave and employee is entitled to this as long as they have taken 26 weeks Ordinary adoption Leave Upon receipt of such notification the employer must within 28 days advise the employee of the date upon which the 26 weeks Ordinary Adoption Leave expires and the date upon which Additional Adoption Leave would expire. Statutory Adoption Pay Statutory Adoption Pay (SAP) is payable to eligible employees on the basis of the full 26 weeks being paid at the rate of the lower of £100 per week of 90% of weekly earnings. Statutory Adoption (Paternity) Pay will be payable to eligible employees during the 2 weeks leave and upon introduction in April 2003 it will be at the rate of the lower of £100 per week or 90% of weekly earnings. Adoption Pay Statutory Adoption Pay (SAP) will be payable to qualifying employees for the period of 26 weeks of Ordinary Adoption Leave. Payment for the 26 weeks is at the rate of £100 or 90% of earnings whichever is the lower. Adoption (Paternity) Leave Where an employee meets the following requirements they will be entitled to Adoption (Paternity) Leave:
Health & Safety at Work
The employer has a duty to ensure it takes all steps reasonably practicable to preserve the health and safety of its staff and any other agents who has reasons to come to the premises of the employer. This is covered by the Health and Safety at Work Act (1974) but have been amended a number of times to provide guidelines about a number of work-related areas. The employer has a duty of care in relation to:
Organisations with more than 5 staff are required to have a written health and safety policy and must ensure it displays health and safety notices. Taking action on health and safety grounds An employee may not be dismissed, selected for redundancy (when others in similar circumstances are not selected) or subjected to any detrimental action for taking certain types of action on health and safety grounds. These rights apply to all employees, regardless of their length of service, if they:
Where the employee has been subjected to some other detriment relating to taking action on health and safety grounds, the employment tribunal will award the compensation it considers just and equitable in all the circumstances, taking into account the particular infringement and any loss incurred. Suspension from work on medical grounds Certain health and safety regulations require employees to be suspended from their normal work on medical grounds, when their health would be endangered if they continued to be exposed to a substance specified in the regulations. These provisions cover exposure to ionising radiation, lead and some other hazards.
Checks on people working with children and vulnerable adults
The Protection of Vulnerable Adults (PoVA) list was set up on 7 June 2004. This is similar to the Protection of Children Act list (POCA) which has been in place for several years, but applies to disqualification of people who have harmed a vulnerable adult or adults in their care or have placed them at risk of harm. It is now unlawful to hire anyone who is on the POVA list, and for anyone on the PoVA list to apply for work in care positions--including providing care in people's own homes. Checks on the PoVA list are carried out as part of Criminal Record Bureau (CRB) checks.
From 1 April 2002 there has been a statutory obligation to obtain certain information about all staff, paid and unpaid, in care homes, children's homes, and health care organisations. This includes not only standard or enhanced criminal records checks (depending on the nature of the work), but also proof of identity, qualifications and previous employment, and being satisfied that the person is fit for the position they hold or are applying for. For staff in care homes who were in their present post on 1 April 2002, checks should have been carried out by 31 October 2004. The government announced on 9 September 2003 that these checks would be at enhanced level, rather than at standard level as previously planned. The deadlines for checks on other staff who were in post on 1 April 2002 have passed. For new staff, checks must be carried out before the person starts work. For For domiciliary care agencies and nurse agency staff, rules requiring checks for providers and managers came into effect from 1 April 2003. Checks are needed before a new domiciliary care or nurse agency worker can take up their placement. Applications for existing domiciliary care staff should have been completed by 31 October 2004. Checks on nurse agency staff started in spring 2004. Staff must provide a statement that they have no criminal convictions, or provide a statement of any criminal convictions that they do have. For some posts (but not all) the organisation must obtain a birth certificate and current passport (if any), and a full employment history, with satisfactory written explanations of any gaps and verification (so far as reasonably practicable) of why previous employment involving work with children or vulnerable adults ended. The organisations must carry out checks on lists of people considered unsuitable to work with children maintained by the Department of Health and Department for Education and Skills. (This is included in Criminal Record Bureau checks.) Where a person is employed by someone else (for example an agency worker or secondee) the receiving organisation must be satisfied that the employing organisation has obtained all relevant information. From 6 April 2004 agencies have a statutory duty not only to carry out criminal record checks on temps who work with children and vulnerable adults, but also to obtain copies of relevant qualifications and two references, and take all reasonable steps to confirm that an individual is not unsuitable for the work. If the agency discovers any new adverse information they must withdraw the temporary worker or, if the worker has been supplied on a permanent basis, inform the employer.
Data Protection
This is governed primarily by the EU Directive on Data Protection (1998) which makes changes to current legislation from 1984. It places a duty on all employers to ensure that they hold accurate information and that such information is from time to time updated to minimise the risk of inaccuracies. Data protection legislation covers all 'personal data' held by the employer and is meant to protect the employee or 'data subject' from any misuse or abuse of such data. Data relates to both manual electronic store of personal information. The principles of data protection are:
Disciplinary and Grievance Hearings
Workers are entitled to be accompanied at certain disciplinary and grievance hearings by a fellow worker or a trade union official of their choice, provided they make a reasonable request to be accompanied. They also have the right to a reasonable postponement of the hearing, within specified limits, if their chosen companion is unavailable at the time the employer proposes. Workers have the right to take paid time off during working hours to accompany fellow workers employed by the same employer. These rights apply to workers including agency workers and home workers, though not to those who are in business solely on their own account. An employment tribunal will consider a worker has been unfairly dismissed, regardless of his or her age or length of service, if the dismissal was for exercising or seeking to exercise the right to be accompanied, or for accompanying or seeking to accompany another worker; nor may an employer subject workers to any other detrimental treatment on these grounds.
Dismissal
Asserting a statutory employment right Employees may complain to an employment tribunal if they are dismissed (including selection for redundancy when others in similar circumstances are not selected) for bringing proceedings against their employer to enforce certain rights, or for alleging the employer has infringed those rights. This protection applies to all employees, regardless of their length of service. To benefit, the employee need not necessarily have specified the right, so long as it was reasonably clear to the employer what the right was. Provided they act in good faith, employees are protected regardless of whether they qualified for the right they sought to assert and regardless of whether that right had in fact been infringed. Employees can claim protection if they are dismissed after asserting rights relating to:
Workers who 'blow the whistle' on wrongdoing in the workplace can complain to an employment tribunal if they are dismissed or victimised for doing so. An employee's dismissal (or selection for redundancy) will be unfair if it is wholly or mainly for making a protected disclosure within the meaning of Part IVA of the Employment Rights Act 1996 (inserted by the Public Interest Disclosure Act 1998). Workers who are not employees can complain that they have suffered a detriment if their contracts are terminated for making such a disclosure, with compensation awarded on the same basis as for unfair dismissal. Both employees and other workers are also protected from other detriment by their employer.
Rehabilitation of Offenders
Broadly speaking, anyone who has been convicted of a criminal offence and who is not convicted of a further offence during a specified period (the 'rehabilitation period') becomes a 'rehabilitated person' and the conviction becomes spent. This means it does not have to be declared for most purposes, such as applying for a job. The rehabilitation period depends on the sentence and runs from the date of conviction. A conviction resulting in a prison sentence of more than 30 months can never become spent. Under the Rehabilitation of Offenders Act 1974, a spent conviction – or failure to disclose a spent conviction or any circumstances connected with it - is not a proper ground for dismissing or excluding a person from any office, profession, occupation or employment or for prejudicing a person in any way in any occupation or employment. However, there are some exceptions to the Act (which relate broadly to work with children, the sick, disabled people and the administration of justice). Where an exception applies, an individual must, if asked, disclose all convictions including spent ones.
Transfer of a Business or Undertaking
The Transfer of Undertakings (Protection of Employment) Regulations 1981 apply to the transfer of an undertaking, or part of an undertaking, to a new employer (for example, as the result of a sale). The employees automatically become employees of the new employer as if their contracts of employment were originally made with the new employer; and the new employer takes over all employment liabilities of the old employer (except criminal liabilities and occupational pension rights). Employees are entitled to object to their contract being transferred to the new employer but, in doing so, normally lose the right to claim there was a dismissal unless they can show that the transfer would have involved a substantial and detrimental change in working conditions. If either the new or the old employer dismisses an employee solely or mainly because of the transfer of an undertaking or part of it, the dismissal is considered unfair. However, if the main reason for dismissal, by either employer, is an economic, technical or organisational one entailing changes in the workforce, an employment tribunal may consider it to be fair. That is likely if the tribunal also finds that the employer acted reasonably in treating this reason as sufficient to justify dismissal.
Trade union membership and activities, and non-membership of a union
Employees have the right to join or not join a trade union of their choice. Their employer may not dismiss them, select them for redundancy or make them suffer detriment for being or proposing to become a union member, nor for taking part in the union's activities at an appropriate time. They are similarly protected if they choose not to belong to a union or refuse to join one. Dismissals which infringe these rights may be taken to an employment tribunal regardless of the employee's length of service. Employees who claim to have been unfairly dismissed in this way (except those complaining of unfair selection for redundancy) can also apply to the tribunal for an order of interim relief (which requires the employer to continue their contract of employment or to re-employ them pending the final outcome of the case).
Recent and forthcoming changes
Acknowledgement
Audrey Campbell – "Employment Law – A training Guide for small voluntary sector organisations" Information gathered from the following websites:
A-Z list of employment law
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The obligation not to compete with the employer