Background to employment law

Background to employment law

The laws and regulations relating to employment and HR broadly come from statutes, such as the employment rights act 1996, and regulations and directives, such as the working time regulations 1998.

Employment tribunals and civil courts interpret these statutes, regulations and directives and, in turn, create what is referred to as the common law.

Common law is a body of law developed by judges, course, and tribunals and is derived from custom and precedent, and it is this that makes employment law so fluid.

Employment law is important because when a business employs an individual, there is a risk that things could go wrong, and this could result in a legal challenge from the individual.

There are also rules when employing people which, if you do not comply with, could lead to criminal prosecution.

Therefore, it is important to be sure that individuals are correctly employed and registered so that the business is compliant with all immigration, tax, and pension requirements.

Businesses and companies must also be aware that they are always responsible for the health and safety of individuals, no matter what their employment status.

 

Employment status

There are many ways in which individuals work and describe the employment status. To name a few, there are full and part time contract, freelancers, and consultants, and each has different rights and responsibilities for employees and themselves.

Most employment rights, such as annual leave and maternity leave, accrue through a recognized employment contract between an employer and an employee, for example, fall, part time or zero our contracts.

People who are truly self-employed contractors will have a few, if any, employment rights under employment law.

For employment to exist, there must be a contract of service.

The idea of service in employment law relates directly to an individual and an employer. In simple terms, an employment contract obliges an individual to undertake work and the employer to pay them for that work.

In these circumstances, the employer controls how, where, and when the work is done. More often than not, work is undertaken at the employer’s premises using their tools and materials. Employees who provide services to others may require their employees to work on client’s sites and to follow client local procedures.

There is usually a written contract between an employer and an employee but, ultimately, contracts can exist even if they are unwritten. If tested, the courts are concerned with the substance of the agreement rather than the form, I.e. What the job and terms are rather than the label a company or individual attaches to the work.

An employer cannot circumvent an individual ‘s employee status by, for example, simply calling them self-employed. In some circumstances, the courts have determined that the use of self-employed individuals or contractors is actually employment

For someone to be an employee they must have either I formal, recognized and agreed employment contract such as full-time, part-time, or zero hours or, in the absence of a formal, recognized and agreed employment contract if most of the following statements are true they are likely an employee:

  • The contract, agreement, or offer letter uses terminology such as employer and employee
  • You are responsible for their tax and national insurance
  • They work a minimum number of hours and expect to be paid for the time they worked
  • They work regular hours unless they are on leave
  • They must undertake the work themselves
  • They work at your business premises or those of your clients
  • They work only for a particular business or company, or any other work they undertake is completely different
  • The employer imposes conditions on the work that they might do
  • They are also likely to be an employee if:
  • Business provides them with materials, tools, or equipment.
  • They get holiday pay and are entitled to contractual or statutory sick pay an annual leave
  • The national insurance comes from their wages and they are entitled to join a workplace pension scheme
  • Disciplinary and grievance policies apply to the individual
  • They are managed or supervised, for example another individual imposes a deadline for a piece of work or provide them with instructions and tasks
  • There is a redundancy clause in their contract

Case study

Earlier, this module mentioned that, in some circumstances where a business has referred to workers as self-employed, the courts have determined that the use of self-employed individuals is actually employment. Uber is an example of this scenario.

The court ruled that Uber drivers should be classed as employed (no matter what terminology is in the contact) and that they should receive basic workers’ rights Dash like minimum wage levels, pensions, and holiday entitlements. This matter is subject to appeal and may change.

The information on the next paragraph is a shortened version of the main points which arose at the employment tribunal in 2017 went to drivers on the half of another 19 took the matter to court.

The Uber drivers claimed that they’re working arrangements Entitled them to be considered employees, rather than self-employed contractors as Uber titled that.

Uber claimed that they did not formally employee workers but allocated jobs through the app and took commission.

The individuals argued that they were in effect employed, not contractors. They were put under pressure to accept jobs, had to work long hours, and faced repercussions if they did not undertake all of the work that the company required of them.

Uber argued that it was a technology firm, not a transport business, and that its drivers were independent, self-employed contractors who could choose where and when they worked.

The courts ultimately ruled in favour of the drivers, judging that Uber was resulting in its documentation to fiction, twisted language, and even brand new terminology. They went on to say the notion that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds faithfully ridiculous. Drivers do not and cannot negotiate with passengers… They are offered and except trips strictly on Uber ‘s terms

Contact Types and Responsibilities

Next part of this module looks at generally recognized working arrangements and the responsibilities that these entail for an employer. It covers:

  • Full-time and part-time contract
  • Fixed term contracts
  • Zero hour contract
  • Agency staff
  • Freelancers, consultants, and contractors

Employees who have a full-time or part-time contract are entitled to and must have a contract of employment and should be provided with a pay slip which includes all deductions

Employees must have:

  • The statutory minimum level of paid leave
  • Maternity, paternity, or adoption leave
  • The statutory minimum length of breaks
  • Statutory sick pay
  • Knowledge of, and access to, grievance and disciplinary procedures, which has a minimum day ACAS guidance.

Employers with full-time and part-time employees must:

  • Avoid discrimination in all aspects of work in the workplace
  • Make Reasonable adjustments is employing someone with a disability
  • Pay at least the statutory minimum wage
  • Register payroll, tax, and national insurance with HMRC
  • Ensure employees don’t work for longer periods that the maximum allowed
  • Ensure that minimum annual leave is taken
  • Ensure that working environments are secure and safe and comply with all the health and safety regulations
  • Have the relevant liability insurances
  • Give consideration to any requests for flexible working

Fixed term contracts

Fixed term employees must receive the same treatment as full time permanent staff.

In addition, these types of contracts must:

  • Last for a certain length of time
  • Be set in advance
  • End when a specific task is completed
  • End when a specific event takes place

Zero hour contracts

Zero hour contracts are suitable where the demand for the job or service is not constant. Professions where a zero hour contract is suitable include interpreters, translators, or online admin assistance.

Zero hour workers are entitled to all the same rights as those on full-time, part-time, or Fixed term contracts, E.G. statutory annual leave and the national minimum wage.

Zero hour contract also means that the individual is on cool when you need them to work but they have no obligation to except the work you ask of them. There is also no requirement for you to get the individual any work. In addition, the contract cannot stop them looking for or excepting work from another employer.

Agency staff

When you employ agency staff, the contract you have is with the agency. This means that the wages, salaries, and national insurance contributions are paid to the agency.

Also, the agency retains the responsibility for ensuring the individual rights on the working time regulations are insured.

After 12 weeks of continuous employment, agency staff are afforded the same terms and conditions as permanent employees, E.G. pay and annual leave entitlements.

Agencies must be told all the terms and conditions of a particular business or company so they can ensure that the individual receives all of these rights after 12 weeks in the same job.

If you hire agency workers, they must be allowed to use the same facilities as permanent employers, and you are responsible for their health and safety.

Freelancers, consultants, and contractors

Using a freelancer, consultant, or contractor means that there are far fewer responsibilities for the contracting party, as the worker tends to be genuinely self-employed or employed by another company.

These workers are not entitled to annual leave or sick pay as with other workers. However, the arrangements you have with them cannot override their individual rights. For instance, you cannot require the individual to work for longer than the relevant working time regulations.

The individual, or the company the individual works for, is normally responsible for contributions such as national insurance.

Any business using the services of a freelancer, consultant, or contractor is responsible for the health and safety.

Employing workers with a disability

All employees must make reasonable adjustments to make sure disabled workers including contract workers, trainees, apprentices, and business partners are not seriously disadvantaged when recruiting or doing their jobs.

Reasonable adjustments are often simple and practical responses to the situation. This could involve:

  • Doing things differently, e.g someone suffers from post traumatic stress disorder, the organization could allow them to work in a space where they feel safe
  • Applying reasonable changes to the work environment, such as installing a ramp for a wheelchair user or supplying an adjustable desk
  • Allowing someone who uses a wheelchair to work somewhere else, like on the ground floor of the premises
  • Facilitating a return to work interview and procedure for those who have become disabled to discuss needs and adjustments

A job specification or person requirement must never exclude disabled people from applying.

It may be that the role cannot be filled by someone with a particular disability, but you must be sure that any specifications for the role are necessary and that the particular part of the job cannot be

Adjusted to allow someone with a disability to do the job.

Think about whether or not job adverts can be provided in alternative format, for example, in large print or video format.

If you make the decision to reject a candidate who has a disability, it must be based on their performance at interview rather than having to make reasonable adjustments.

Access to work

Access to work as a publicly funded scheme which provides money towards some costs where an individual requires support or adaptations.

The scheme covers:

  • Special aids and equipment

  • Adaptations to equipment

  • Travel to and from work

  • Communication support

  • Support workers

The average cost of reasonable adjustments is Around £148.

Employing young workers

If you employ young workers under 18, there are additional rules:

Working time and brakes – young workers cannot generally work more than eight hours per day or 40 hours a week. They must also have 12 hours consecutive break between work days

Those under 18 cannot work at night except in certain industries such as bakeries where they are allowed to work between 10 or 11 to midnight

Young workers are entitled to the national minimum wage at the relevant right this is currently £4.35 an hour

In England only, young workers who do not hold level three educational training must stay in part time education or training until they reach 18 years old. This could be work based training.

Extra support is Advisable when employing a younger worker, where it is the first job, or where they are entering a profession for the first time, for example, offering them more detailed inductions and mentors.

Summary

  • When a business employs an individual, there is a risk that things can go wrong and result in a legal challenge from the individual

  • There are also rules when employing people which, if you do not comply with, could lead to criminal prosecution. There are additional Employment laws for young workers and people with disabilities

  • There are many different types of employment status, such as full-time and part-time contract, freelances, each type of contract has different rights and responsibilities for employers and themselves

  • Most employment cries, such as annual leave for maternity rice, a cruise through a recognized employment contract between an employer and an employee.

  • Self-employed workers have a few, if any employment rights under employment law

  • The next module will look at how to recruit and in sure no unlawful discrimination happens during the process