Changes To The Contract
In accordance with common law contractual principles, an employer may not change any terms of the employee’s contract without the employee’s consent. Such consent may be express (by the employee agreeing to the change) or implied (by the employee continuing to work for the employer without protest for an appropriate period of time after being made aware of the change). Any change of terms to which the employee does not consent will amount to a breach of contract. If the change is a significant one which goes to the root of the contract, the employee is entitled to resign and treat the contract as at an end. In so doing, the employee may also claim that he has been constructively dismissed (and seek damages accordingly). However, depending on the change in question, the wording of the contract, the reasons for the change and the degree of consultation carried out before the change, the employer may have a defence to a breach of contract or constructive dismissal claim.
Although there has been some discussion at governmental level about potentially outlawing the practice of “firing and re-hiring” (ie terminating the employee’s existing contract of employment and offering new employment on new terms, to commence immediately after the expiry of the old contract), the practice remains permissible at the present time.
Change In Ownership Of The Business
When there is a change in ownership of a business (except a change merely in the shareholding ownership), under the TUPE rules (see above) all employees are automatically transferred to the new employer on the same terms and conditions. These rules apply also where only a specific part of a business changes ownership. There are obligations imposed on both the old and the new employers to consult with the affected employees though elected representatives, or a recognised Trade Union, prior to the transfer taking place (and financial penalties for failure to do so). Employees are allowed to refuse to transfer to the new employer. However, if they do they will be deemed to have resigned and will not be entitled to any compensation (unless the refusal relates to a failure to maintain the same terms and conditions after the transfer).
Social Security Contributions
Employers and employees are required to make social security contributions (rates are determined annually). Employers are also required to contribute towards allowances payable to employees during their employment. These allowances include sick pay, maternity pay and paternity pay.
Accidents At Work
Employers have a common law duty to have regard to the safety of their employees. Employers are also responsible under common law for accidents caused by the acts of their employees where the employees were acting in the course of their employment. It is compulsory for the employer to take out insurance to cover potential claims by employees in this regard.
In addition to common law duties, a number of obligations are imposed on employers through legislation (most significantly the Health and Safety at Work Act 1974). The employer also owes specific statutory duties to members of the public who are affected by the activities of the employer, and other people’s employees working on their premises. In some instances, a breach of the employer’s statutory duties may give rise to criminal and civil liability.
Discipline And Grievance
In 2004 a statutory discipline and grievance procedure was introduced, but faced universal criticism, and it was repealed wholesale with effect from April 2009. In its place there is now a “voluntary” code of practice, known as the ACAS Discipline and Grievance Code of Practice. Although employers are not obliged to follow its guidelines when dealing with disciplinary or grievance matters, a failure on the part of either party to follow the Code of Practice can affect the level of compensation awarded (in respect of a number of claims the Employment Tribunal is given a power to vary the award, at its discretion, by up to 25%). The Code of Practice requires the employer to properly investigate the matter, to notify in writing the findings to the employee, to hold a disciplinary hearing or meeting, to notify in writing the decision of the employer following that hearing to the employee, and to give the employee a right of appeal against the decision.
Under the Equality Act 2010, employees are protected from discrimination because of sex, age, sexual orientation, pregnancy and maternity, marital status, race, religion or belief, disability and gender reassignment (the “protected characteristics”). Employees are also protected by other legislation from discrimination on grounds of part-time status and fixed-term status.
Discrimination may occur before the employment relationship commences (for example in advertising the job), during the employment (for example in failing to promote), on termination or even after the employment has ended (for example in writing the reference). In the case of discrimination because of a protected characteristic, the discrimination may be direct (for example refusing to employ a man or woman), perceived (for example where an employee is wrongly perceived to have a protected characteristic and suffers discrimination), associative (for example where an employee receives less favourable treatment because of an employee’s association with someone who has a protected characteristic) or indirect (for example by imposing a condition which puts a particular group at a particular disadvantage and which cannot be justified). However, in the case of discrimination because of pregnancy or maternity there are still no provisions for dealing with indirect discrimination. Whilst the Equality Act 2010 sought to introduce a new concept of combined discrimination, which is still part of the statute, no Government has, as yet, brought these provisions into force, and there is no sign of any intention to do so at the current time..
There is no qualifying period of employment for protection from discrimination. Discrimination can lead to a claim in the Employment Tribunal and there is no limit to the damages which can be awarded. Damages are calculated so as to put the claimant in the position they would have been in if the unlawful discrimination had not taken place, plus an element for injury to feelings which currently ranges from £900 to just under £46,000 depending on the severity of the impact of the discriminatory behaviour on the individual. The level of compensation is increased annually (by official guidance issued by the President of the Employment Tribunal) to take account of inflation. Compensation may be awarded for personal injury if the employee can show that the discrimination caused the harm.
The tribunal will not normally award punitive damages, but in rare cases, aggravated damages may be awarded to an employee if a tribunal finds that the respondent was malicious, insulting or particularly heavy-handed.
Harassment is a separate type of claim, but is linked with discrimination. It involves unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. It is unlawful if it is related to any of the protected characteristics listed above.
Victimisation is also a form of discrimination that involves treating a person less favourably because that person has complained (or intend to complain) about discrimination, or because that person has given evidence in relation to another person’s complaint. An employee must not be disciplined or dismissed, or suffer reprisals from colleagues, for complaining about discrimination or harassment at work.
The concept of equal pay, previously set out in the Equal Pay Act 1970, has been incorporated into the Equality Act 2010. It provides that a woman employed at an establishment in Great Britain is entitled to enjoy contractual terms that are as favourable as those of a male comparator in the same employment, provided the woman and the man are employed on equal work.
Compulsory Training Obligations
There are no compulsory training obligations for employees generally, but obviously some trades/professions will impose their own standards/expectations. However, employees working for employers with 250 or more employees are entitled to request time off work to undertake study or training.
Since April 2020, the written particulars of employment must include details of all compulsory training which the employee is required to undertake, and must state whether the costs of that training will be covered by the employer or the employee.
It is possible for employers to offset earnings against employee’s debts. However, the employer may only make a deduction from the employee’s wages if it is required or permitted by a statutory or contractual provision; or the employee has given his prior written consent to the deduction.
Payments For Maternity And Disability Leave
Employees will benefit from certain payments subject to satisfying the relevant necessary requirements. To trigger statutory maternity pay entitlement, a woman must have earned a minimum amount (reviewed annually) prior to going on maternity leave, must have accrued at least 26 weeks’ continuous employment as at the end of the “qualifying week” (the 15th week before the expected week of childbirth) and must still be employed during that week.
With regard to disability leave/sickness absence, an employee will be entitled to receive statutory sick pay (the amount of which is determined by statute, and reviewed annually) from the fourth day of consecutive absence, subject to earning a minimum amount on average beforehand. The maximum entitlement is 28 weeks. If payments are made in this regard, the employer can, subject to certain conditions, deduct these from the social security contributions that they are otherwise due to pay. On 1 December 2014, the Shared Parental Leave Regulations 2014 came into force. They allow parents to share the 50 weeks of maternity leave usually only granted to the mother (maternity leave is 52 weeks in total, however the mother has to take 2 weeks as compulsory maternity leave), subject to certain procedural requirements.
Most employers are required to maintain insurance under an approved policy with an authorised insurer, against liability for bodily injury or disease sustained by employees during, and arising out of, their employment. The employer must not be insured for less than £5 million in respect of any one occurrence. Employers must ensure that they display copies of the insurance certificate at every place where they carry on business so that it can be easily seen and read by employees.
Absence For Military Or Public Service Duties
Employees are entitled to take leave for military or public service duties, but there is no right to be paid during such leave.
Works Councils or Trade Unions
An employer may voluntarily agree to recognise a Trade Union. By virtue of the Trade Union and Labour Relations (Consolidation Act) 1992 a Trade Union can demand recognition if a sufficient proportion of the workforce desire it. To do so, a Trade Union must firstly make a written request to the employer and if not successful, may make an application to the Central Arbitration Committee. It is important to note that irrespective of the outcome, no further applications may be made by that Trade Union or a substantially similar unit for a period of three years.
An employee who is a member of a Trade Union has certain rights in relation to his employer. For example: dismissal for membership of, or for taking part in the activities of, an independent Trade Union is automatically unfair for the purposes of unfair dismissal and higher awards of compensation may, in some circumstances, be made; action short of dismissal against an employee or subjecting an employee to a detriment for membership of, or for taking part in the activities of, an independent Trade Union gives the employee the right to complain to a tribunal which may award him or her compensation; a Trade Union member has the right to time off work without pay to take part in Trade Union activities. In addition, a Trade Union official has the right to take time off with pay for Trade Union duties.
Under the Trade Union and Labour Relations (Consolidation) Act 1992 an employer has a duty to consult with appropriate representatives of any employees who may be affected where the employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less.
Employees’ Right To Strike
There is no general right for employees to strike. However, certain immunities will be granted in respect of industrial action if there is a Trade Union involved, provided the action is conducted strictly in accordance with statutory requirements (e.g. conducting a ballot beforehand).
Employees On Strike
Employers can still dismiss employees on strike if the strike was not properly authorised. Even if the strike was validly authorised, after a certain period the employer can dismiss employees. Other courses of action may also be open to the employer depending on the circumstances (e.g. withholding pay, seeking an injunction, claiming damages for financial loss).
Employers’ Responsibility For Actions Of Their Employees
Employers are responsible for the acts of their employees, except where the employee was acting wholly outside the course of his employment.