15.1 Factors to take into consideration with definitions
Some of the factors you have to think about when looking at legal considerations of human resources are:
-Age discrimination
-Data protection
-Disability
-Dismissal
-Employment terms and conditions
-Equal pay
-Grievances and disciplinary
-Harassment and bullying in the work place
-Health and safety
-Maternity and parental rights
-Race discrimination
-Religious discrimination
-Redundancy
-Sex and sexual orientation discrimination
-Tribunals
Age discrimination
Age discrimination is when someone is unfairly treated based on their age. This is often seen by older workers.
Harassment and bullying in the work place
This can range from physical violence through to ignoring someone. Bullying and harassment can be experienced in a number of ways and often go unnoticed by many and happen over a long period of time. In some instances, it happens only once.
Data protection
Data protection is how personal data is processed within the company. It must comply with the data protection principles set down by law. This ensures that the personal data is handled correctly and that the employees' rights are not violated at any time.
Disability
Disability refers to any mental or physical impairment that may have an effect on how an employee conducts activities on a daily basis. It is illegal in the UK to discriminate against such workers due to their disability.
Discipline and grievances
This is the need for a transparent process to deal with any difficulties arising within the work place. This can be a working relationship between employees or between employer and employee.
Dismissal
Dismissal is when an employment contract is terminated. This may be with or without notice or the contract ends and is not renewed. In legal terms, dismissal can also be when an employee decides to leave the company. Terminating the contract, wrongful dismissal, and unfair dismissal are all dismissal options that can result in legal action in the future.
Tribunals
Tribunals are carried out when claims are brought against an employer by an employee when it comes to their employment with the company or the termination thereof. This may be anything from appeals to compensation to defending a claim and so much more.
Equal pay
Equal pay is part of sex discrimination law and has been a hot topic for more than 40 years. Equal pay gives men and women the same rate for the same job. Often, you find in companies that a man will hold the same job as a woman, but they are paid more.
Health and Safety
Health and safety in the work place is something that is taken very seriously in every company in every industry throughout the United Kingdom. Occupational health, employee well-being, first aid, security, and so much more will all fall under the legal considerations when it comes to health and safety in the work place.
Maternity leave and parental rights
Every employee has a right to take a set amount of time off work when welcoming a new baby. This may be a woman that is pregnant and will take time away from work in the first few months of the new baby's life. The father also has right to take some time off work to bond with their new child. There is also a right to take time off when it comes to adoption.
Race discrimination
Race discrimination is part of the Equality Act of 2010, which is when a company doesn't hire someone or discriminates against them due to their skin colour, their ethnic background, or even personal characteristics.
Redundancy
Redundancy is a traumatic experience for any employee and can have a negative effect on the company moving forward. Redundancy is when there is no longer a need for the employee due to the position that they fill becoming null and void for the company. Under this law, you will find voluntary redundancy, termination, redundancy pay, downsizing of the company, and so much more.
Religious discrimination
Religious discrimination also falls under the Equality Act 2010 in the United Kingdom. This covers any religion and it is a belief that should not be discriminated against. With people living in the UK from so many different countries, it is not uncommon to find good applicants being discriminated against because of their religious beliefs.
Sex and sexual orientation discrimination
This form of discrimination is often seen by people who have a different sexual orientation to their other office workers. These people are also protected under the Equality Act of 2010.
15.2 Contract of employment
Every employee working for the company must have some form of contract which sets out the employment conditions, their rights and responsibilities, along with the duties they have been hired to perform. This is a binding agreement which both the employer and the employee must abide by at all times or until such time as the terms are changed and signed for.
Acceptance
Once an applicant accepts a job offer from a company then they have a contract. The employment contract does not need to be in writing in order to make it legal.
Terms
The legal sections of an employment contract are referred to as the terms. It is the employer's responsibility to ensure that the employee understands the sections within the contract which are legally binding.
Contract terms can include:
-A statement of employment in the form of a written statement, document, or contract
-A verbal agreement
-Stated in the employee handbook
-An offer letter
-National minimum wage
-Collective agreement, a negotiated agreement between the employer and trade union
Any implied terms which may not be written down. □Implied terms are those which may not be written down, but may be implied, including:
-Not stealing from the company
-The employer providing a safe working environment
-Legal requirements such as holidays which are to be paid each year
-Having a valid driving license if this is essential to completing the job. A driver will imply that they have a full UK driving license, for example.
15.3 Collective agreement
It is possible for an employer to have agreements with representatives of employees, such as staff associations or trade unions. This allows for the negotiation of employment terms and conditions including working hours and rates of pay, for example. This is a collective agreement.
The agreement may include the following:
-Organising negotiations
-Who is responsible for representing the employees
-The employees covered in the agreement
-The terms and conditions covered in the agreement
Written statement
A written statement of employment is provided to the employee by the employer when the employment contract is for longer than a month. While this is not an employment contract, it does include the main conditions set out by the acceptance of the position.
The employer must provide the employee with a written statement within two months of them starting employment with the company. In the event the employee works abroad more than a month in total during the first two months of employment, then they must receive the written statement before they travel overseas. A written statement may not include only one document; in fact, it can be made up of numerous documents. In the event the written statement is made up of numerous documents, then there must be at least one principal statement.
This must include:
-The company name
-The employee`s name, start date, job title, and work description
-Dates of employment, including any previous jobs at the company
-How and when the employee will be paid
-Working hours
Holiday entitlements, such as bank holidays, etc. Where they will be working and specifications on whether they need to relocate as a result In the event an employee is working in various departments at a host of addresses, then the
employer`s address must be clearly stated for each place.
The written statement must also include the following:
-Length temporary job is expected to last
-End date of any fixed term contract
-Any notice periods by either party
-Any collective agreements
-Pension agreements
-Grievance procedures
-How to manage a grievance complaint, from how to complain to how it is handled
-How to complain about any dismissal or disciplinary decisions.
While there is so much that must be included in a written statement, there are also certain aspects which do not need to be included. These include sick pay and sick day procedures, grievance procedures and disciplinary procedures, or dismissal procedures. In the event you are in Northern Ireland, then it is required that disciplinary procedures are included in the written statement.
In the event the employee is required to work overseas, then the written statement needs to include:
-Length of time overseas
-Currency for payments
-Any additional payments
-Terms on their returning to the United Kingdom
This is to be presented in a separate document. In the event the employment is being carried out within the EU, then the legal minimum of that country must be adhered to. This includes: minimum pay, holidays, and working hours.
15.4 Contract types
Companies will often work with various types of employment contracts based on the industry and their work force. The contract in place will also determine the employer`s tax responsibilities.
Full and part time employment contracts
The employer is responsible for providing a written statement regarding the employment, along with the minimum amount of paid holidays that will be given during the year. In addition to this, the employer will provide an employee with a payslip which will give all deductions, including National Insurance contributions. With this type of contract, it is your responsibility to ensure that employees don't work more than they are legally allowed and that they are paid the minimum wage.
The company must have employer's liability insurance in place and provide a secure working environment for all employees. In addition to this, all employees must be registered with HM Revenue and Customs and be paid through the PAYE system.
Fixed term contract
A fixed term contract is a contract that lasts a set period of time. The duration of the contract is determined in advance or ends once a specific task is completed. It also ends when a certain event has taken place. A company may call in a project manager to assist with a certain event. Once that even is completed then they have fulfilled their obligations and the contract ends. A fixed term employee will get the same treatment as though they were a full time and permanent member of the team.
15.5 Agency staff
Many companies rely on agency staff from time to time to fill in a gap when an employee is off stick or when they haven't quite fill a position where an employee has left the company. Hiring temporary staff still means:
You are required to pay the agency, including National Insurance and statutory sick pay. It is the responsibility of the agency to ensure that their workers get what is due to them under the regulations. In the event the agency worker is still with the company after 12 weeks of continuous employment in the same position, then they immediately are given the same conditions that are set out for the permanent employees. This includes rest periods, working times, pay, annual leave, etc.
The terms and conditions of the temporary contract must be provided to the agency. It is the agency's responsibility to ensure their employee gets equal treatment when they have been working in the same position for 12 weeks or more. Agency workers must be allowed to use shared facilities, including child care or the staff canteen, for example. You are responsible for their health and safety while working on your premises.
Freelancers and contractors
Hiring anyone as a contractor, consultant, or freelancer comes with its own legal considerations, often more beneficial to the company in the long run. These people are usually self-employed or they work for another company. This means that you are not responsible for their National Insurance contributions or taxes and you do not have to provide them with the same rights as your employees, including minimum wage. That being said, you are still responsible to ensure their health and safety at all times.
Zero hour contracts
Zero hour contracts or casual contracts are often used in the hospitality industry. These are when a person only comes to work when needed. This may be waiting staff, cashiers, or shop clerks, for example. With this type of contract, they only come to work when needed. The company is not obligated to provide them with work and they don't have to come in when you need them. While zero hour contract staff are only there when needed, the company must still provide them with the minimum wage and statutory annual leave, the same as permanent employees. Workers on a zero hour contract are not obligated to the company and therefore they can work elsewhere, they can run both jobs at the same time or they can actively look for work.
FACT
The presence of a corporate incentive program motivated 66% of employees to stay at their job
Source: achievers.com
15.6 Continuous employment
Continuous employment is seen when an employee works for a company for a set period of time without any breaks. Employees who have provided continuous employment have rights, which include maternity pay, redundancy pay, and flexible working request. Continuous employment starts its calculation from the very first day of work with the company. What does continuous employment include?
Continuous employment allows for some breaks, which are expected from time to time, such as:
-Sick leave, maternity and paternity leave or adoption leave
-Annual leave
-Being employed overseas by the same company
-The time gap between being unfairly dismissed and employment being reinstated
-Working for different managers or employers within the same group
-Military service
-Temporary lay-off
-Locked out by employer
-When business is sold and transferred from one employer to the next.
Strikes
Any days that employees strike on are not counted towards continuous employment, but it is also not seen as a break. An example is that when an employee works for 20 days and is on strike for five of the days, then it is only 15 days of continuous employment.
15.7 Employer relocation
In the event a company deciding to relocate, only employees with a mobility clause written into their contract are in a position to move. This must be followed through, unless they have a reasonable request. Employees have to relocate within a certain limit of the new address. If this is written into the contract then an employer can force the employee to fulfil their duties. This is done unless it is completely unreasonable. Unreasonable means an employee having to move across the country after being given one day`s notice. Those who do not have a mobility clause in their contract can decide how to proceed and whether relocating is something they are interested in to stay with the company moving forward.
Redundancy
Employers are in a position to make employees redundant should they choose not to move with the company. At the same time, employees may be able to claim redundancy pay if they meet redundancy criteria, they have worked for the company for a set period of time, they are not being compensated due to them not deciding to move, or they have refused and chosen to find alternative work.
Compensation
As the employer, you do not have to provide an employee with any compensation for the relocation unless it is clearly stated in their employment contract. The relocation of the home and family may be solely on the employee`s shoulders.
Disputes
A dispute may be resolved between an employer and employee regarding relocation if one member is thought to be unreasonable and a redundancy payment has been refused.
Employee taken over
Employees are protected under certain regulations when a company is taken over by new owners and they wish to relocate the business. This is known as Transfer of Undertakings Protection of Employment (TUPE). The employees` rights, including redundancy protection and contractual rights, will remain the same even if the new owner does introduce a relocation.
15.8 Prevention of discrimination
It is illegal for a person to treat anyone else less favourably due to their personal characteristics, including their age, race, sexual orientation, or religion. This discrimination can be seen across the board in a company from refusing to hire a certain person to choosing someone for redundancy. It may even be paying one team member less than the others. Discrimination isn't always deliberate. Often, it is done indirectly, giving one set of rules to one group over another.
15.9 Recruitment
When placing an advert, you need to pay close attention that you don't accidentally discriminate against anybody. This means you cannot state that you do not cater to disabled workers. You are allowed to use `highly experienced` or `recent graduate` if they are real requirements of the position. Keep in mind that these comments could be seen as age discrimination. Where you advertise may also be seen as discrimination, such as advertising the position in a men's magazine.
You are allowed to discriminate in the event that you cannot provide employment to a particular group. It may be that your company sells alcohol and, therefore, you cannot employ anyone under the age of 18. During recruitment, there are certain things you can and cannot do. Failing to meet these guidelines may see you held accountable for discrimination. This includes asking an applicant about their health, their marital status, and their plans to have a family in the near future. You can only ask them about a disability if the job requires that adjustments would need to be made or if they will need assistance when taking certain sections of a test or an interview.
Date of birth
To avoid discrimination, you must never ask anyone for their date of birth on their application form. Choosing who to interview must not be influenced by age. You can include date of birth on the equality monitoring form.
Criminal convictions
An applicant is not obligated to tell you about any criminal convictions if they are already spent. This means that you have to treat them as though nothing ever happened and you cannot refuse to employ them as a result. The only time this is exempt is if you are hiring for a bank or a school, for example.
Trade union memberships
An employee being a member of a trade union cannot be used to decide whether or not to employ them. You cannot force someone into becoming a trade union member in order to hire them and you cannot refuse to employ someone because they are already a trade union member.
Protected characteristics
You are allowed to choose a candidate who has certain protected characteristics over another employee as long as they are suitable for the position.
This includes:
Someone who is underrepresented within the industry
Someone who has suffered a disadvantage due to their characteristics, such as their religion, age, sexual orientation, race, etc. You are only allowed to do this if you are addressing under-representation within the industry. The decision is to be made on a case by case basis. It is important to note that you cannot choose a candidate who is not suitable only because they are protected.
Disabled applicants
You are allowed to treat disabled people more favourably than anyone without a disability. This is closely related to the last section on protected characteristics, and comes directly from legislation in the Equality Act 2010. Employers are allowed to offer a job to a disabled person over a non-disabled person if (a) they can do the job just as well, and (b) they have a disability which is underrepresented in the workforce. This is known as 'positive action.'
15.10 Discrimination during employment
While you cannot discriminate during the recruitment process, you are also not allowed to discriminate against any of your employees during their employment. This is often done without realising it and could be:
-Discriminating against workers who are living together and not married, for example Choosing someone for redundancy because they do have protected characteristics
-Not making the necessary adjustments for a disabled employee
-Terminating a contract of employment because someone made an allegation of discrimination against you or the company
-Terminating a contract because an employee is a member of a trade union
-Refusing flexible working request from a new parent.
Employment tribunals
An employee may follow grievance procedures if they feel they are being discriminated against, taking their case to the tribunal. It is your responsibility to ensure that employees do not discriminate against other employees as you will be held accountable as a result. You need to do whatever you can to put a stop to it without delay.
The employment of family members
In the event that one of your family members has the right skills for a new position, they must go through the application process. Once they have been selected and they are part of the team, you must not provide them with any special treatment, such as different working conditions to everyone else or higher pay. You also need to ensure that their national insurance contributions and tax are paid correctly at all times.
Gender reassignment
You may find yourself faced with an employee who is going to be having gender reassignment. This is something that they have saved up for. The minute they advise you, they are protected from discrimination.
This means:
-You cannot discriminate against a worker because you know they are going to be taking time off for their medical treatments
-You must allow the employee to use the facilities based on their current gender
-After the gender reassignment, you must amend your personnel records without delay
-Confidentiality must be a main priority at all times regarding the employee`s gender history. Equal pay
Whether your employee is male or female, they deserve equal pay and benefits based on their position. If you have two employees in the same position and one is a man and the other a woman, and they have the same educational background and work experience, they should be earning exactly the same with identical benefits.
Module summary
There are certain legal considerations which must be adhered to when dealing with the sourcing, recruitment, and employment of staff within the United Kingdom. This module provided you with valuable insight into different definitions relating to legal cases in human resources. You got a good look at the legal requirements of employment contracts and the various types of contracts you need to know about. Furthermore, this module gave you a deeper insight into discrimination and what you must do to reduce the risk of discrimination in your work place.
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