Employment Law Regulation – CIPD Level 5 Module #3

CIPD Level 5:  Module #3 Employment Law

Below is a module 3 submission for the CIPD Level 5 certification, kindly shared by one of our clients to help you on your own HR journey. Next up is, Employment Law!

Contents

I – Understand the purpose of employment regulation and the way it is enforced in practice:

• 1.1 Explain the aims and objectives of employment regulation.
• 1.2 Describe the role the tribunal and court system plays in enforcing employment law.
• 1.3 Explain how cases are settled before and during formal legal procedures.

II – Know how to manage recruitment and selection activities lawfully:

• 2.1 Identify the main principles of discrimination law in recruitment and selection and in employment.
• 2.2 The 9 Protected Characteristics.

III – Know how to manage change and reorganisation lawfully:

• 3.1 Describe when and how contracts can be changed lawfully.
• 3.2 Explain the main requirements of redundancy law.
• 3.3 Explain the main requirements of the law on business transfers.

IV – Know how to manage issues relating to pay and working time lawfully:

• 4.1 Explain the major requirements of equal pay law.
• 4.2 Explain major maternity, paternity and other family-friendly employment rights

V – Be able to ensure that staff are treated lawfully when they are at work:

• 5.1 Identify the major requirements of health and safety law.
• 5.2 Explain the significance of implied duties as regards the management of employees at work.
• 5.3 Explain the principles of the law on freedom of association.

VI – Know how to manage performance and disciplinary matters lawfully:

• 6.1 Explain the main requirements of unfair dismissal law in respect of capability and misconduct issues.
• 6.2 Explain the scope of the right for employees to be accompanied at serious discipline and grievance hearings.

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7 Module Submissions

Also, check out the other 7 module submissions here:

• Module #1 Improving Organisational Performance 
• Module #2 Contemporary Developments in Employment Relations
• Module #4 Developing Professional Practice 
• Module #5 Business Issues and The Contexts of Human Resources
• Module #6 Using Information in Human Resources
• Module #7 Employee Engagement
• Module #8 Managing and Co-ordinating the Human Resources Function

Part One – Understand the Purpose of Employment Regulation and The Way It Is Enforced in Practice:

1.1 Explain the aims and objectives of employment regulation

Firstly, this article suggests that the aims and objectives of employment regulation are to regulate the employer and employee relationship (CIPD, n.d.) Employment regulation. AKA employment law, enforces rules and sets expectations for both the employer and employee so there is fairness and consistency on both sides.

All in all, employment law provides protection for the employer and employees when unreasonable decisions or behaviour occur on either side. Basically, it helps to normalise the employee and employer relationship so both sides uphold the regulations, especially around the employment or dismissal of staff.

Employment law consists of common law, statute and European law. They all have the same objective, which is to help provide working conditions that are free from bias for everyone. In fact, a majority of UK employment law consists of statutes that provide the fairness we highlighted earlier. Examples of these are the Equality Act 2010 (Taylor and Woodhams, 2016), the Disability Discrimination Act 2005, the National Minimum Wage Act 1998 (Russell, n.d.)

1.2 Describe the role the tribunal and court system plays in enforcing employment law

If an employee feels their employer has treated them unfairly, they are able to raise a tribunal claim against them. So during a tribunal hearing, an employment judge and two other people will assess whether or not the employer has met the employee’s employment rights, and then make a ruling in favour of either the employee of the employer; depending on the evidence (CIPD, 2019).

Now I believe the tribunal process plays a vital part in employment law, as it gives the employee a way to make their voice heard, which wouldn’t necessarily happen otherwise; especially since the removal of the fee in 2017.

Employment law through the court system comes under the listing of ‘civil law’ or ‘private law,’ and this is where one party (the claimant) raises a claim against another party (the respondent) that the court needs to resolve. Generally, the person raising these cases will be an existing employee, an employee who has left the business, or someone who has been unsuccessful in a job application.

Now either a criminal court or a civil court will hear employment law cases. So a criminal court will hear cases brought by government or state agencies like HM Revenue & Customs and Crown Prosecution Service. The court will presume one party is guilty (respondent) and the other innocent (claimant). Therefore, it is the respondent’s defence’s responsibility to prove beyond a reasonable doubt that the evidence provided is false or flawed in some way.

During a civil court hearing the rules are different, in that the court may request either party to prove their case “on the balance of probabilities.” For example, an employee needs to prove that their employer has acted in an unlawful way, OR an employer needs to prove that they have not acted unlawfully CIPD. (2019).

1.3 Explain how cases are settled before and during formal legal procedures

Before a case comes to court, both sides need to take certain steps that exhaust all other options before undertaking a move to legal proceedings. Also, third-party conciliation or ADR (alternative dispute resolution), Mediation and Arbitration are all voluntary processes available to both parties and where possible, both sides should investigate them first in the hope of reaching a suitable and more cost-effective agreement (Crane, 2019).

So if all else fails, before allowing an employee to raise a tribunal claim, they should contact ACAS to try one last time and resolve the dispute through an early conciliation process (CIPD, 2019).

Now in some instances, before fully committing to legal proceedings/cases, both parties may agree to enter voluntarily into a settlement agreement. It is important to note that this doesn’t always result in the termination of an employment contract; it could be that the employer has notised a grievance raised, but both sides would prefer to come to a quiet result (Hurst, 2019).

When formal legal proceedings such as a tribunal or a civil court are necessary to settle cases, there will almost always be fines or awards that one or both parties will have to pay, unless they can have a protected conversation where the employer and employee discuss a way forward.

Part Two – Know How To Manage Recruitment and Selection Activities

2.1 Identify the main principles of discrimination law in recruitment and selection and in employment.

Secondly, people and organisations discriminate during recruitment and selection when they treat a person differently based on their sexuality, gender, religion, or age.

If an organisation decides not to employ someone because of a certain characteristic, they are discriminating against that person and breaking the law in accordance with the Equality Act 2010. This covers nine protected characteristics, and if any organisation shows any evidence of not employing someone because of one or more of these, the failed applicant can raise a tribunal claim against the hiring company.

2.2 Protected Characteristics

The Citizens Advice Bureau (2019) lists the nine protected characteristics the Equality Act 2010 covers as follows:

1. age
2. disability
3. gender reassignment
4. marriage or civil partnership (in employment only),
5. pregnancy and maternity
6. race
7. religion or belief
8. sex
9. sexual orientation

Discrimination can be direct or indirect. Direct discrimination is where someone treats an individual differently because of who they are, or who they think the other person is, or because the individual is with someone that the other person thinks of in a less praising manner.

Now indirect discrimination stems from policies that target everybody in the same manner, and potentially disadvantage people who share one or more of the protected characteristics listed above (Citizensadvice.org.uk, 2019). I believe indirect discrimination is more prevalent in the selection of roles within organisations.

Part Three – Know how to manage change and reorganisation lawfully

3.1 Describe when and how contracts can be changed lawfully.

Now, for part three. An employer can change a contract of employment, but this would generally need the employee to be in agreement with the changes, depending on how many changes there are and what the employer proposes. Now the employer can change some elements of a contract without consent, but it must state in the employee’s original contract that the elements are not contractual e.g. a benefit of some kind.

According to ACAS, an employer can make a change if there is a flexibility clause (something that allows the change), the employee has no objection to the change, or the employee’s trade union or representation agree to the proposed changes (Beta.acas.org.uk, 2019).

A flexibility clause is normally listed as something the employer can change such as the place of work, start or finish time or bonus entitlement, but it must be very clear. But where the employee has no objection to the change, a consultation process would normally take place to prevent legal action. The employer would propose the change, and highlight the reason behind the decision to the employee/s where both parties would exchange views and opinions and agree.

Trade unions would undergo consultation in the same manner as an employee. Additionally, they have the authority to agree on changes on behalf of the employee if it is explicitly stated in the employee’s contract. However, if trade unions typically agree to all matters on behalf of the employees they represent, this is also permissible as it is an implied term.

3.2 Explain the main requirements of redundancy law.

Redundancy is a form of dismissal and a way of reducing a department or company size in instances where the business needs to save money, when they no longer require someone to do a job due to amalgamation of roles, or when the role ceases to exist. In any situation, businesses should not use redundancy as a last resort (CIPD, 2019).

ACAS states that the main legal requirements for redundancy include the right to a minimum notice period. Now depending on the length of service, this notice period would be 12 weeks for anyone employed for 12 years or more, at least one week for anyone employed from one month to two years, and one week’s notice for each year of service for individuals who have served between two and 12 years. Additionally, there is a requirement for a redundancy payment and a payment in lieu of notice (PILON), but certain activities should occur before achieving these entitlements.

So if cost is the main focus, a company should exhaust all other options such as recruitment freezes or pay in general, reduced working hours, natural attrition loss or in some cases, the company could offer early retirement to those who welcome it. However, where the business no longer requires a role, the employer could offer secondments or cross-training where suitable.

Redundancy needs to be fair, and the business should consider all employees who perform the same or very similar roles. Where skill set is not an issue, employers should offer voluntary redundancy so individuals have the chance to take it if they wish.

3.3 Explain the main requirements of the law on business transfers.

Firstly, business transfers are often referred to as TUPE, which is an acronym for ‘Transfer of Undertaking (Protection of Employment) Regulations 1981’ (Fidler, 2019).

When an organisation is ‘bought out,’ there could be an agreement to retain the employees already employed. Organisations must be based in the United Kingdom, unless they are part of a larger umbrella company where the parent can be based in a different country and the size of the company has no impact on the process.

Now an example of when TUPE applies is when a company is acquired for services provided, and there is a need to retain the existing employees for their skill set. TUPE also applies where the affected employee’s current employment terms and conditions listed in their contract are transferred and where continuous employment is upheld.

Now there are two types of TUPE that fall under the regulation that are called “business transfers” and “service provision changes” (GOV.UK, 2019)

• Business transfers are where an organisation (or part of it) is sold to another organisation (as above). Or where a merger takes place, however, for the TUPE protection to be recognised, the identity of the original company must transform.
• Service provision change is when an in-housed service such as cleaning or catering is outsourced to a contractor or vice versa where the cleaning or catering contract ends and the service is in-house. Service provision change can also occur when the existing contract naturally comes to an end and is tendered for someone else to take on or given to an alternative provider.

Part 4 – Know How To Manage Issues Relating to Pay and Working Time Lawfully

4.1 Explain the main requirements of equal pay law.

Now, if a person has a contract (either verbal or written) and broadly speaking, they are performing a task in exchange for something in return, they are classed as a worker and all workers have employment rights (GOV.UK, 2019).

Gov.uk say the major statutory rights workers have in the fields of pay are:

• Equal pay – This law was introduced in 1970 by the Equal Pay Act and has since, been incorporated into the Equality Act 2010. This law provides all genders with the right to be paid the same salary for the same or similar job/s
• National Minimum Wage – This is dependent on age as per the below diagram and anyone 25 or over will be paid the National Living Wage. Both wages are revisited every year and can change each April.

The major statutory rights around leave and working time are:

Now Working Time Regulations cover all workers, not just employee’s e.g. contractors or sub-contractors are entitled to at least 5.6 weeks paid holiday per year. Adults must have a 20-minute unpaid break in a working day that exceeds six hours whereas young adults (aged 16 to 18) must receive a 30-minute break for anything over four and a half hours (CIPD, 2019.)

Holiday (or leave) accrues during adoption, maternity, or paternity leave. If a worker is absent due to illness, they will continue to accrue holiday and will be entitled to take it upon their return (depending on the return date) or receive payment for it.

Equal Pay Law, Maternity, Paternity and Other Family-Friendly Employment Rights

As stated above, the equal pay law was established in 1970 and now forms part of the Equality Act 2010. The equal pay law is part of the UK sex discrimination law, which dates back more than 40 years (CIPD, 2019).

The Chartered Institute of Professional Development states “The law gives a woman the right to be paid the same as a man (and vice-versa) for

• Like work – this applies to two employees who are doing the same or broadly similar roles. Or…
• Analytical job evaluation studies can rate work as equivalent, even if the work involves entirely different jobs. This rating results from the analytical job evaluation process. Or…
• Work of equal value – when there are two jobs that are very different, but the employee claims that they require a similar level of skill and ability. For example, a female cook compares her work to that of painters, insulation engineers and joiners who work for the same organisation.”

When an organisation is liable for a case involving pay discrimination, they must actively engage in an “equal pay audit,” unless they have used a system falling under one of the four exceptions. After its completion, the audit must be published on the organisation’s website for three years. Also, failure to comply with this requirement can result in fines of up to £5,000.

4.2 Explain major maternity, paternity and other family-friendly employment rights

Now times have changed, with families now being much more blended and multifaceted. This is so much so that both partners are entitled to statutory rights when a child is brought into the equation by natural birth or adoption.

Maternity leave consists of three parts totalling a period of 52 weeks leave. However, not everyone is entitled to all three. Compulsory Maternity Leave states that when a mother has given birth, she must not return to work for the first two weeks (four for factory workers) and this is a right for all birth mothers. (GOV.UK, 2019).

Birth mothers qualify for Ordinary Maternity Leave, which consists of a six-month period, and there is no prerequisite for length of service. The employee determines this leave and when they would like to start it, unless the baby decides to arrive early or the mother cannot attend work due to sickness related to pregnancy within the four weeks leading up to the date given.

The organisation offers Additional Maternity Leave exclusively to mothers in permanent employment, regardless of their length of employment.

The company offers Paternity Leave to the individual who would typically assume the traditional ‘father’ role for the child, regardless of whether it is a natural or adoptive situation, a same-sex relationship, or surrogacy. The individual eligible for paternity leave must be an employee with over 26 weeks of continuous employment with the same company. (GOV.UK, 2019)

Employees also have the entitlement to take unpaid time off for family emergencies. In situations where childcare may present a challenge, employees can take up to four months of unpaid parental leave and can request a flexible working pattern, although the latter can be rejected.

Part Five – Ensure that staff are treated lawfully when they are at work

5.1 Identify the major requirements of health and safety law.

All in all, legislation and common law set down rules for health and safety,  as all employers have a duty of care to ensure they keep their employees safe whilst working, no matter what their environment might be. Health and safety law list many major requirements, but the CIPD, 2019 suggests a few to be:

• To carry out risk assessments and determine what physical or mental harm could potentially happen to an employee or employees, if employers do not meet certain standards. This might mean maintaining electrical equipment, or ensuring there is clean water for consumption, and hygienic toilets are readily available for use.
• Establish and maintain a health & safety policy relevant to the company in a place where all employees have visibility of it.
• All employers must have Employers Liability Insurance to cover employees in the event of an accident.
• Employers should have health and safety advisors. Now these could already be part of the facilities team or in a different role within the organisation. They should be competent and have the knowledge to give advice and guidance to others as and when appropriate, in order to prevent accidents.
• Employers must carry out risk assessments, including Display Screen Equipment (DSE). They should carry out these assessments on anyone using a computer screen regardless of making an assessment in the past. If an employee’s circumstances change e.g. they become pregnant, then the company are responsible for carrying out another assessment to ensure they cover everything and remove the employee, where possible, from potential danger.

5.2 Explain the significance of implied duties as regards the management of employees at work.

I believe it is extremely important that managers have a certain level of expectation for their employees to apply common sense around hazards in the workplace, take it seriously and take a reasonable amount of responsibility for their actions. If employees expect their employer to include all potential hazards for all environments and variations of individuals in a contract or health and safety policy, it would be never-ending.

As long as an employer provides a “safe place of work”, “a safe system of work”, an “adequate plant and equipment” which is industry-specific and they “recruit competent and safety conscious staff,” then they have shown that they have a duty of care over their employees that they take seriously.

However, if an employer neglects to take reasonable care in any of the aforementioned areas, employees might potentially claim “constructive unfair dismissal and personal injury” because they felt compelled to leave their roles. Management plays a crucial role in ensuring that employees acknowledge this implied term, thereby reducing the risk of harm to anyone, as per CIPD’s suggestions. (2019).

In essence, an employee may take any organisation to court or a tribunal if they fail to meet the minimum expectation of the HSE, and have not applied the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999. However, employees must take some responsibility for keeping themselves safe and helping the organisation to remain a safe place.

5.3 Explain the principles of the law on freedom of association.

“Freedom of association is a right to associate with any group they wish, including joining or leaving the group, and for the group to take collective action on behalf of its individual members” (HRZone, 2019)

The core principles of the law around freedom of association centre on the Human Rights Act. The Act’s underlying values consist of “dignity, fairness, equality, respect and autonomy” Archive.acas.org.uk. (2019).

Now consider Article 11 of the Human Rights Act concerns the Freedom of assembly and association. It states that everyone has the right to meet and join peacefully in organisations such as trade unions, and there should be no limit on exercising the right unless it falls within legal limits including matters of national security and public interest (Equalityhumanrights.com, 2018).

An example of the authorities questioning freedom of association happened when the English Defence League (EDL), a far-right group, planned a protest march in Bradford, West Yorkshire in August 2010. After previous EDL protests resulted in violence, local authorities and the police considered the dynamics of the local community, which largely consisted of Muslim families opposed to the protest.

So the authorities asked the community about allowing individuals the right to protest peacefully and reached an agreement that the protest could go ahead, alongside a simultaneous static counterprotest in support of Unite Against Fascism.

By working together, law enforcement and the community helped make the situation a peaceful one without conflicts.

Part Six – Know how to manage performance and disciplinary matters lawfully:

6.1 Explain the main requirements of unfair dismissal law with respect to capability and misconduct issues.

Now in my opinion, capability and misconduct are different. The enquiry should therefore look into both aspects in unfair dismissal cases. However, all employees should have the statutory right to protection from unfair dismissal.

Managers should be aware that to prove capability or otherwise:

• The employer must show that they have dismissed the employee in a fair manner
• To determine unfair dismissal based on capability, a tribunal court/judge will look at whether or not the employer gave the individual:
  • Proper guidance and training to support them in finishing the job at hand
  • Opportunity to improve, following appropriate additional training
  • The offer of a suitable alternative role where possible, and fair and proper advice regarding the need to improve their capability (Solicitors, 2012).

Now misconduct is slightly different to capability, as this is more around a person’s behaviour, and their want and willingness to complete their role to the required and expected company standard, or not as the case may be.

Managers should be aware that for misconduct a tribunal will look to see if:

The employer has completed a full and thorough investigation of the evidence surrounding why they think the employee is guilty of misconduct. The investigating officer needs to be a person with no biases towards either side. The employer only needs reasonable grounds to believe the employee is guilty and does not need to prove it beyond all reasonable doubt (Citizensadvice.org.uk, 2019)

Now in both cases of unfair dismissal, carrying out a legal test will help evaluate all the evidence, provided the findings go towards forming a judgment around the claim.

6.2 Explain the scope of the right for employees to be accompanied at serious discipline and grievance hearings.

Now consider section 10 of the Employment Relations Act 1999. Basically, workers/employees have a right to a companion during a disciplinary or grievance hearing unless they are providing a contract of service (EMPLOYEE RESCUE, 2019).

The right of accompaniment does not mean the person supporting the employee has the right to represent them, and they must adhere to certain limits, such as:

• Firstly, a companion will generally be either a fellow worker, a trade union representative or a trade union official. Unless the employee’s contract states they can have other support such as their partner, husband or wife or legal representation.
• As above, the employee does not have the right for legal representation to be present unless their contract states their employer agrees to it.
• The employee can ask a family member to be present, but they can only attend when they agree with the employer.
• An employer can refuse the employee’s ‘support’ companion if they feel there is an implied term of trust and confidence breach (CIPD, 2019)
• The companion can assist by asking questions, clarifying views with the employee and voicing them on the employee’s behalf. They can even question witnesses if present.
• Lastly, a companion cannot answer questions on behalf of the employee, or interrupt the employer whilst they are presenting their side of evidence or the case. As a general rule, the companion must hold their trust and not break it in any way.

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Updated: September 2023 by Charles Smith