UK Employment Law

UK EMPLOYMENT LAW SUMMARY Prepared by Eversheds 1 SECTION 1: INTRODUCTION...............................................................................1 1.1 HISTORICAL BACKGROUND................................................................1 1.2 LEGAL SYSTEM ........................................................................................1 SECTION 2: INDIVIDUAL EMPLOYMENT .......................................................2 2.1 EMPLOYMENT CONTRACT ..................................................................2 2.2 EMPLOYEE DISMISSAL..........................................................................4 SECTION 3: COLLECTIVE BARGAINING ........................................................7 3.1 EMPLOYEE REPRESENTATION...........................................................7 3.2 DISPUTE RESOLUTION...........................................................................9 SECTION 4: COMPENSATION, BENEFITS AND LEAVE ...............................9 4.1 WAGES .........................................................................................................9 4.2 HOURS........................................................................................................ 10 4.3 BENEFITS .................................................................................................. 11 4.5 OCCUPATIONAL PENSION .................................................................. 14 SECTION 5: ANTI-DISCRIMINATION .............................................................. 15 5.1 AGE DISCRIMINATION......................................................................... 15 5.2 GENDER DISCRIMINATION ................................................................ 16 5.3 DISABILITY DISCRIMINATION.......................................................... 17 5.4 RACE DISCRIMINATION ...................................................................... 18 SECTION 6: OCCUPATIONAL HEALTH AND SAFETY............................... 19 6.1 OCCUPATIONAL SAFETY.................................................................... 19 6.2 WORKERS COMPENSATION............................................................... 20 SECTION 7: IMMIGRATION............................................................................... 20 7.1 VISA REQUIREMENTS .......................................................................... 20 2 3 4 5 6 7 BIR_EMP/614232/01 -1- 1. 1.1 SECTION 1: INTRODUCTION HISTORICAL BACKGROUND Employment law in the UK is derived from three principal sources: common law, domestic legislation and European law. 1.1.1 Common Law This includes the law of contract (under which the contract of employment is enforced) and the law of tort (wrongful acts which cause damage or loss) which governs, for example, an employer’s liability for industrial accidents. An important aspect of UK law is the fact that, in deciding on the outcome of a case, cour ts in the UK are bound by precedent. This means that they are bound by the judgment of a superior court while the judgments of courts of the same level are persuasive but not conclusive. 1.1.2 Domestic Legislation This includes Acts of Parliament and Regulations which operate outside the contract of employment. The main statutory employment rights can be found in the Employment Rights Act 1996. In addition there is a considerable amount of anti-discrimination legislation, the main statutory provisions being the Equal Pay Act 1970 (as amended), the Sex Discrimination Act 1975 (SDA) (as amended), the Race Relations Act 1976 (RRA) and the Disability Discrimination Act 1995 (DDA). The most recent employment law reform is the Employment Relations Act 1999. The principa l aims of this Act are to promote family -friendly policies (such as the Maternity and Parental Leave etc Regulations 1999). 1.1.3 European Law European Community (EC) law has applied to the United Kingdom since 1973. There are three basic sources of EC law whi h apply to the UK: the c Treaty of Rome (as amended), EC legislation in the form of Regulations and Directives and decisions of the European Court of Justice (ECJ). 1.2 LEGAL SYSTEM The principal forum for e mployment disputes is the Employment Tribunal. The Employment Tribunal was set up to be an informal method of resolving disputes in BIR_EMP/614232/01 -1- which parties could represent themselves rather than having recourse to lawyers. Now, however, lawyers have taken over the tribunals and most employers (and some individuals) are represented by expert advocates. Employment tribunals have jurisdiction to hear a large number of employment issues. The statutory provisions within the scope of the tribunal’s jurisdiction include: 1.2.1 Employment Rights Act 1996 (covering unfair dismissal, redundancy payments, unlawful deductions from wages, maternity issues, written reasons for dismissal etc); 1.2.2 the Pension Schemes Act 1993 (complaints relating to unpaid contributions to occupational pension schemes); TULRCA 1992 (trade union-related disputes); Equal Pay Act 1970; SDA 1975, RRA 1976 and DDA 1995 (discrimination claims); Health and Safety at Work etc Act 1974; claims for damages for breach of contract up to a maximum of £25,000 and employers’ counterclaims (in each case the claim must arise or be outstanding on the termination of the employee’s employment); 1.2.8 2. 2.1 other miscellaneous claims. 1.2.3 1.2.4 1.2.5 1.2.6 1.2.7 SECTION 2: INDIVIDUAL EMPLOYMENT EMPLOYMENT CONTRACT UK employment law makes a distinction between employees, who work under a contract of employment, and independent contractors (or workers), who work under a contract for services. It is important to distinguish the two as an employee enjoys better legal rights than an independent contractor. Whether a worker is an employee or not is to be judged by key objective tests; it is not necessarily conclusive that the relationship is labe lled as an employer/employee one. 2.1.1 Form of Contract The employment contract may be a detailed document encompassing all eventualities (usually the case for senior employees) or a short agreement to employ and be employed. It may be oral or in writing. Ho wever, an BIR_EMP/614232/01 -2- employer is obliged to give to his employee particulars of certain terms of the contract in writing within two months of the beginning of the employee’s contract (or if he is to begin work outside the UK for more than a month, no later than the time he leaves the UK). The particulars which must be given are: name of employer and employee; date when employment began; date when continuous employment began (i.e. previous contract with same or associated employer or transfer of employment contract); rate of remuneration or method of calculating remuneration; intervals at which remuneration is paid; terms and conditions relating to hours of work; terms and conditions relating to: holidays (including public holidays) and holiday pay; incapacity for work due to sickness or injury, including provisions for sick pay; pensions and pension schemes including whether or not a contractingout certificate is in force; length of notice to be given by employee and employer; title of job or br ief description; period for which job is to continue (if not permanent); place(s) of work and employer’s address; any disciplinary and grievance rules applicable (or reference to such); any relevant collective agreements; BIR_EMP/614232/01 -3- - certain further particulars if employee is to work outside UK for more than a month. Any changes to the written particulars must be given in writing not later than one month after the change (or the time of leaving the UK if that is the cause of the change). An employee may bring a complaint to the employment tribunal if he is not provided with the particulars specified above. 2.2 EMPLOYEE DISMISSAL 2.2.1 Wrongful Dismissal If the requisite period of notice is not given by the employer, an employee can bring a claim for wrongful dismissal. 2.2.1.1 Statutory Notice The Employment Rights Act 1996 provides for statutory minimum notice periods. The statutory minimum notice which must be given by an employee who has been employed for one month or more is one week. The statutory minimum notice to be given by an employer to an employee who has been employed for one month or more but less than two years is one week; after two years of service an employee is entitled to one week for every year worke d up to a maximum of twelve weeks. 2.2.1.2 Contractual Notice Frequently the contract of employment will specify a longer period of notice to be given by either party in order to terminate the contract. If no notice period is stated in the contract there will be a implied term that the contract may be terminated on n reasonable notice. The notice actually given must not be less than the statutory minimum period of notice. 2.2.2 Unfair Dismissal The right not to be unfairly dismissed is a statutory right (as opposed to a contractual right) which is now contained within the Employment Rights Act 1996. It is available to employees only, and not to workers who are independent contractors. An employer who dismisses an employee without BIR_EMP/614232/01 -4- good reason or without following a fair procedure lays itself open to a claim for unfair dismissal. If such a claim is brought, the employer must first establish that the reason was one of the five potentially fair reasons for dismissal, that dismissal was a fair sanction in the circumstances and that a fair procedure was followed. An unfair dismissal claim can be brought in the Employment Tribunal or, alternatively, can now be heard under the new ACAS Arbitration Scheme. The ACAS Scheme was introduced on 21 May 2001 and is designed to deal with only the most straightforward unfair dismissal claims. 2.2.2.1 Qualifying Service In order to have the right to bring a claim for unfair dismissal, employees, generally, must have the necessary one -year qualifying period of service (with certain exceptions, for example, health & safety or maternity related dismissal). Employees over normal retiring age (i.e. the normal retiring age for an employee holding the position he held or, if none, 65) and employees who ordinarily work outside Great Britain are not protected, nor are those dismissed in connection with unlawful industrial action. 2.2.2.2 Dismissal An employee must also have been dismissed by his employer. An employee is treated as having been dismissed: (a) if his contract of employment is terminated by the employer with or without notice; if a fixed-term contract expires without being renewed; or if the employee terminates the contract because of the employer’s breach of contract (known as ‘constructive dismissal’). An employee will also be considered to be dismissed if he resigns in circumstances where the ‘choice’ was to resign or be dismissed. A claim must be presented to the employment tribunal within three months of the termination of employment. (b) (c) BIR_EMP/614232/01 -5- If an employee is dismissed for a reason for which no qualifying service is necessary (e.g. maternity related dismissal), the dismissal is treated as automatically unfair and it is not open to the employer to show that he has acted reasonably in all the circumstances. 2.2.2.3 (a) Potentially fair reason In order for a dismissal to be fair an employer must show what the reason for the dismissal was and that it was one of the potentially fair reasons and that it was fair in all the circumstances. There are five potentially fair reasons for dismissing an employee. i. The reason was related to the capability or qualifications of the employee for performing work of the kind which he was employed to do. ii. iii. iv. The reason was related to the conduct of the employee. The employee was redundant. The employee would be in contravention of an enactment if he continued to work in the position he held (commonly the loss of a driving licence). v. The dismissal was for some other substantial reason. An employer must establish that the dismissal fell within one of these five reasons otherwise the dismissal will be unfair. Once this is established, the tribunal must determine whether the dismissal was fair in all the circumstances. The tribunal must consider whether the employer acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the employee. The tribunal must not ask itself whether it would or would not have dismissed the employee in the particular circumstances but whether the dismissal was within the band of reasonable responses which a reasonable employer could adopt. BIR_EMP/614232/01 -6- The tribunal must also consider whether the employer adopted a fair procedure in dismissing the employee. The ACAS Code of Practice on Disciplinary and Grievance Procedures provides useful guidelines. Failure to follow a fair disc iplinary procedure will almost always lead to a finding of unfair dismissal. However, a defect in the original procedure may be capable of being corrected by a fair appeal depending on the seriousness of the allegation and whether the appeal takes the form of a complete rehearing. 2.2.2.4 Remedies If a tribunal finds that an individual has been unfairly dismissed it may make an order for reinstatement or re-engagement and/or it may order a compensation payment to be made. In practice, awards for reinstatement and re-engagement are rarely sought and even more rarely ordered. It is generally compensation which a complainant seeks. An award of compensation for a successful unfair dismissal claim will usually consist of a basic award and a compensatory award. The amount of the basic award will be the same as a statutory redundancy payment except that in the case of a redundancy payment, employment prior to an employee’s 18th birthday is not counted. The maximum basic award is currently £7,500. The compensatory award is currently capped at a maximum of £52,600. 3. 3.1 SECTION 3: COLLECTIVE BARGAINING EMPLOYEE REPRESENTATION Employee representation is now prescribed by statute in certain circumstances. For example, an employer is required to inform and consult with its workforce when a transfer of an undertaking or a large number of redundancies are planned. Where a trade union is recognised, the employer must consult with the trade union representatives, or in the absence of any trade union recognition, it must consult with employee representatives. A trade union (however recognised) also has the right to be consulted in relation to certain health and safety matters. 3.1.1 Union Recognition BIR_EMP/614232/01 -7- The Employment Relations Act 1999 gave trade unions the statutory right to be recognised by employers for certain collective bargaining (i.e. negotiation rights) purposes. A new procedure for recognition was introduced but the aim is to encourage voluntary recognition wherever possible. 3.1.1.1 Voluntary Recognition The majority of recognition agreements are reached on a voluntary basis with an employer agreeing to recognise either one or more trade unions for collective bargaining purposes. Where an employer anticipates that a union will apply for recognition and be successful, it may be more beneficial for the employer to negotiate its own voluntary agreement rather than have one imposed. A voluntary agreement is not legally binding and the parties are free to negotiate the scope of any collective bargaining powers. 3.1.1.2 Imposed Recognition Where an employer does not agree to recognise a union voluntarily, the union may apply for compulsory recognition by making an application to the Central Arbitration Committee (CAC). Where recognition is imposed, the bargaining agreement has effect as a legally binding contract. The agreement lasts for three years and an employer cannot terminate the agreement during this time without the consent of the union and without the need to follow derecognition procedures. Collective bargaining is limited to “pay, hours and holiday” although there is no statutory definition of these terms. 3.1.2 Works Councils A multi- national enterprise which employs 1,000 or more employees and operates within two or more European countries may be required to establish a European Works Council (EWC) for informing and consulting its workers at a transnational level. BIR_EMP/614232/01 -8- 3.2 DISPUTE RESOLUTION For many employers the ability to ensure that normal working practices prevail until any dispute procedure is exhausted is extremely important. One of the key provisions of any agreement between an employer and the union should be an agreed dispute resolution procedure, which ensures that no industrial action or ballot for action can occur until the dispute procedures have been exhausted. Where a trade dispute exists, ACAS (Advisory, Conciliation and Arbitration Service) has a statutory authority to offer its assistance by way of conciliation “or other means”. ACAS offers its help in approx. 1,000- 2,000 trade disputes each year. “Other means” might include arbitration. Arbitration differs from conciliation in that a conciliator will try to reconcile conflicting viewpoints by encouraging “give and take” between the parties involved. Whereas an arbitrator in the absence of any agreed settlement will propose an alternative solution of his own. An arbitrator’s decision is not legally binding and therefore an arbitrator is usually only appointed where both parties consent to his involvement. ACAS will arrange arbitration by an independent third party or the CAC. 4. 4.1 SECTION 4: COMPENSATION, BENEFITS AND LEAVE WAGES Cashless pay is now the norm and, since 1986, new employees can no longer insist on being paid in cash. Employees are usually paid monthly by bank transfer net of their tax and national insurance contributions. Employees (other than certain excluded classes of employment) are entitled to an itemised pay statement giving details of gross pay, deductions and net pay. The National Minimum Wage Act 1998 provides that all workers (with limited exceptions e.g. workers aged 16 and 17) are entitled to be paid a national minimum wage (NMW) provided they have reached school-leaving age and ordinarily work in the UK. The basic ‘adult’ rate is currently £4.10 per hour. It is a criminal offence to refuse or wilfully neglect to pay the NMW. Employers will have specific recordkeeping obligations which must be sufficient to show that an employee is being paid at a rate at least equivalent to the NMW. Some organisations pay an annual bonus to their employees, often at Christmas. This is not obligatory and, unless it became an express or implied contractual right, employees are not entitled to receive it. BIR_EMP/614232/01 -9- 4.2 HOURS Since 1 October 1998, there are specific rules in the UK governing the working hours and breaks of most workers. The Working Time Regulations 1998 (as amended) cover not only employees but also workers who work under any other contract whereby they undertake to do or perform personally any work or services for another party to the contract (but not a client or customer of any profession or business undertaking carried on by the individual). 4.2.1 48-hour week There is a 48-hour limit on average weekly working time. The average number of hours worked must be calculated with reference to a 17-week period. Unless otherwise stated, the reference period may be ‘any period of 17 weeks in the course of ... employment’. There are some special case exemptions allowing a 26-week reference period, and the possibility of a reference period being a full year where a collective or workforce agreement provides for this. It is possible for individuals to opt out of the 48-hour limit subject to a number of requirements. The 48-hour week limitation does not apply to those whose working time cannot be measured or predetermined: – managing executives or other persons with autonomous decision-taking powers; family workers; employees officiating at religious ceremonies in churches and religious communities. The first category above is open to wide interpretation with some employers arguing that it covers all professional and managerial staff. A further category has now been added by an amendment to the Regulations: workers whose time is not wholly measured or is all unmeasured. This covers workers who have an element of their working time predetermined but who also work outside those predetermined hours, either on a voluntary basis or in circumstances where they have control over whether to work longer, when and for how long. The voluntary hours are not taken into account for the purposes of the 48-hour week. – – BIR_EMP/614232/01 -10- 4.2.2 Rest periods Daily rest - Adult employees are entitled to at least 11 hours consecutive rest in each 24-hour period during which they work. For young employees (under 18 but over compulsory school age) the entitlement is 12 hours rest. Weekly rest - An employee is entitled to an uninterrupted weekly rest period of not less than 24 hours in each seven -day period during which he works for the employer. These periods can be averaged over a reference period of 14 days. The rest break is usually (with some exceptions) in addition to the daily rest period. Young employees are entitled to 48 hours consecutive rest in any seven-day period. Rest breaks - Workers are entitled to a rest break of not less than 20 minutes where daily working time is more than six hours. A young employee is entitled to 30 minutes rest break where his daily working time is more than 4½ hours. In the case of work that involves special hazards or heavy strain, the normal hours must not exceed eight in each 24 hour period. The rest breaks do not apply to those whose working time is unmeasured (see above) and also to some special case exemptions. Other exemptions may be made by means of collective and workforce agreements. 4.3 BENEFITS 4.3.1 Company Cars Directors, and employees earning at least £8,500 a year, are liable to income tax on a company car. Employers may also be liable for Class 1A National Insurance Contributions on providing a company car. However, despite these tax implications, company cars are viewed as an important perk and are valuable in terms of staff relations. 4.3.2 Health Insurance Many employees, particularly managers and higher grade employees, enjoy private health insurance as an employee benefit. Many such policies also cover the spouse and/or family of the employee. The objective of such a benefit is not only to attract and retain employees but also to minimise absence and increase productivity. BIR_EMP/614232/01 -11- Employers may also provide their employees with permanent health insurance to cover periods of long-term sickness or incapacity lasting more than six months. 4.3.3 Share option schemes Selected employees are sometimes given rights to acquire shares between three and ten years after the grant of an option at a fixed price. Performance conditions may be imposed. Inland Revenue approved status is available in some cases (subject to a maximum value of share under option of £30,000 per employee). 4.3.4 Savings-related share schemes These are also known as sharesave or Save As You Earn (SAYE) schemes. These are Inland Revenue approved and involve all employees being offered the opportunity to save for a three or five-year period in a tax exempt savings account. At the end of the savings period the employees may use the savings to acquire shares at a fixed discount price. 4.3.5 Sickness Benefits An employee may be entitled to Statutory Sick Pay (SSP) in circumstances when he has been ill from work for 4 days or more and has complied with notification procedures. Employers also frequently provide contractual sick pay for their employees over and above the statutory sick pay (SSP) rates. The amount of contractual sick pay is often based on the ‘top-up’ pr inciple, i.e. making up the difference between SSP and the employee’s normal wages for a specified period. Details of the employee’s entitlement to sick pay should be specified in his written particulars of employment. 4.4 LEAVE 4.4.1 Annual Leave Under the Working Time Regulations 1998, all workers are entitled to at least four weeks’ paid annual leave. Such leave may not be replaced by a payment in lieu except where the employment relationship is terminated. Otherwise, parties to a contract are free to agree terms regarding holidays and paid holiday entitlement is generally between 20 to 25 days. Some employers give extra holiday entitlement related to length of service. BIR_EMP/614232/01 -12- Contrary to popular belief, there is no implied term entitling employees to bank holidays with or without pay. 4.4.2 Parental Leave 4.4.2.1 Statutory Maternity Leave Any employee, irrespective of length of service or hours of work, has the right to take 18 weeks maternity leave. This period of leave is called ordinary maternity leave. An employee who has been continuously employed for at least one year by the 11th week before the expected week of confinement (EWC) is entitled to take a further period of additional maternity leave of 29 weeks from the beginning of the week in which the child is actually born. Sta tutory maternity pay (SMP) may be available to employees who satisfy conditions relating to length of service and an earning threshold. SMP is payable for 18 consecutive weeks. 4.4.2.2 Parental Leave The basic right is to 13 weeks’ unpaid leave for each parent for each child (soon to be 18 weeks for parents of a disabled child) provided that parent has a minimum of one year’s continuous employment. In most cases the child must have been born on or after 15 December 1999 and the leave must be taken before the child’s fifth birthday. However, the cut-off date of 15 December 1999 has been successfully challenged and parental leave will, as soon as amending legislation is in force, be available to all parents of children under five. In the case of a disabled child (technically one who is entitled to a disability living allowance) the leave can be taken at any time up to the child’s 18th birthday. The minimum period of leave is one week and leave must be taken in multiples of one week unless the employer agrees otherwise, (an exception to this is made for parents of disabled children). The right also applies to adoptive parents, in which case the leave can be taken up to the fifth anniversary of the date on BIR_EMP/614232/01 -13- which the placement for adoption began or the child’s 18th birthday, whichever is the earlier. The right applies in relation to a child placed for adoption on or after 15 December 1999, even if the child was born before that date. 4.4.2.3 Time off for Dependants Employees are entitled to unpaid time off to care for dependants. An employee has the right to a reasonable amount of time off to take action which is necessary in certain prescribed circumstances (such as to make arrangements for the provision of care for a dependant who is ill or injured); A dependant is considered to be a spouse, a child, a parent or a person who lives in the same household as the employee otherwise than as an employee, tenant, lodger or boarder. In addition, people who rely on the employee for assistance or for the provision of care may also count as dependants. Although the statutory right is to unpaid leave, many organisations in the UK allow paid leave of one or two days for domestic emergencies. 4.5 OCCUPATIONAL PENSION Approximately half of UK employees are members of an occupational pension scheme. Most large employers now offer a pension scheme as a tax-efficient employee benefit. Now that the Welfare Reform and Pensions Act 1999 (WRAPA 1999) has come into force, there are three basic t pes of occupational pension y scheme: final salary, money purchase and stakeholder pensions. 4.5.1 Final Salary A final salary scheme is one in which the benefits are defined in advance. The employee’s pension will be directly linked to his pay at retirement and his length of service. Members usually pay a fixed percentage of their pensionable pay to the scheme each year and the employer meets the balance of the cost. 4.5.2 Money Purchase The employee’s benefit from a money purchase scheme depends not on his final salary but on how much has been paid into a specific account for each BIR_EMP/614232/01 -14- employee. The amount the employee and the employer each pay into the scheme is accumulated separately for each employee. 4.5.3 Stakeholder A stakeholder pension, introduced by the WRAPA 1999, resembles a money purchase scheme in that the benefits will depend on the value of the member’s ‘pot’ at retirement. Stakeholder schemes are intended to be flexible and employers can offer flat-rate or percentage deductions from employees’ salaries (or both). T he WRAPA 1999 requires that all employers with five or more employees must ensure that there is at least one stakeholder pension scheme and must offer membership to all relevant employees. 4.5.4 Personal Pensions Employees may opt out of their employer’s scheme and contribute to a personal pension. However employers are rarely willing to contribute to a personal pension scheme so the benefit of the employer’s contributions will be lost. Personal pensions operate on a money purchase basis. 5. SECTION 5: ANTI-DISCRIMINATION The UK outlaws discrimination in the workplace on the basis of sex, race and disability. Claims under the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, may be brought by employees including ‘those under a contract of service or apprenticeship, or a contract personally to execute any work or labour’ and by applicants for employment. Employers will be vicariously liable for the discriminatory acts of their employees if such acts were carried out in the course of employment. Employers may be directly liable for the discriminatory acts of third parties if those acts occurred in circumstances where they were in a position to prevent it. 5.1 AGE DISCRIMINATION The UK has a voluntary Code of Practice against age discrimination but no legislation against it yet, although legislation is due to be implemented by December 2006. The Code suggests that employers should avoid using age limits or age ranges in job advertisements and that age should not be a criterion for redundancy selection. The Code has no statutory force but it is believed that it might in time help inform the BIR_EMP/614232/01 -15- thinking of employment tribunals on what constitutes ‘reasonable behaviour’ in unfair dismissal claims. 5.2 GENDER DISCRIMINATION The Sex Discrimination Act 1975 (SDA 1975) makes discrimination on grounds of sex or marital status unlawful. The provisions in the Act apply to the treatment of men as well as women. Sex discrimination can take place in three ways: direct discrimination, indirect discrimination and victimisation. 5.2.1 Direct Discrimination This occurs when a woman is treated less favourably than a man (or vice versa) or a married person is treated less favourably than a single person, the treatment is on the grounds of that person’s sex and that treatment results in a detriment. The test often applied is: ‘Would she (or he) have been treated any differently ‘but for’ the fact that she is a woman (or he is a man)?’ Direct discrimination includes the concept of sexual harassment. 5.2.2 Indirect Discrimination This occurs when an employer applies a provision, criterion or practice: 5.2.2.1 with which a considerably smaller number of women than men can comply (or vice versa); which is not justifiable irrespective of sex; and which operates to the detriment of a person. 5.2.2.2 5.2.2.3 For example, a practice which results in the less favourable treatment of part-time employees is likely to constitute indirect discrimination against women on the basis that the majority of part-time workers are women. 5.2.3 Victimisation An employer is guilty of discrimination by way of victimisation if the employer treats any person less favourably than others because that person has brought proceedings, given evidence or information or taken any action or made any allegation concerning the employer with reference to the SDA 1975 or the Equal Pay Act 1970 or has threatened to do any of those things. BIR_EMP/614232/01 -16- 5.3 DISABILITY DISCRIMINATION Discrimination on the grounds of disability is made unlawful by the Disability Discrimination Act 1995 (DDA 1995). Unlike the SDA 1975 and Race Relations Act 1976 (RRA 1976) there is no distinction between direct and indirect disability discrimination in the DDA 1995. Instead there is discrimination by less favourable treatment and discrimination for failure to carry out the duty to make adjustments, as well as discrimination by way of victimisation. Employers with fewer than 15 employees are currently exempt from the provisions of the DDA 1995; however, from spring 2004 this exemption will be removed and all businesses will have to comply with the Act regardless of the number of employees. 5.3.1 Disabled Person A person has a disability for the purposes of the DDA 1995 if he has a ‘physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities’. Section 2 makes it clear that the DDA 1995 not only protects those who have a disability but also those who have had a disability. The DDA 1995 is to be extended so that the rights of partially sighted people and people with ca ncer will be improved. Partially sighted people will be ‘deemed’ disabled and so qualify for protection and people with cancer will be covered by the DDA 1995 from the point at which the cancer is likely to require substantial treatment. 5.3.2 Discrimination by less favourable treatment An employer discriminates against a disabled person if, for a reason which relates to the disabled person’s disability, it treats him less favourably than it treats or would treat others to whom the reason does not or would not apply and it cannot show that such treatment is justified. In order for the employer to establish the defence of justification, it must show that the reason for the treatment in question is both material to the circumstances and substantial. 5.3.3 Duty to make ad justments An employer is under a duty to take such steps as are reasonable to prevent any arrangements or any physical features of the employer’s premises from placing a disabled applicant or employee at a substantial disadvantage compared to those applicants or employees who are not disabled. Failure to do so is only justifiable for a reason which is both material in the circumstances and substantial. BIR_EMP/614232/01 -17- 5.3.4 Victimisation The victimisation provisions are almost identical to those contained in the SDA 1975 and the RRA 1976. 5.4 RACE DISCRIMINATION Discrimination on racial grounds is made unlawful by the Race Relations Act 1976. Its provisions are similar to the SDA 1975. Race Discrimination may be direct discrimination, indirect discrimination or discrimination by way of victimisation. 5.4.1 Direct Discrimination A person discriminates directly if, on racial grounds, he treats one person less favourably than he treats or would treat other persons and that treatment results in a detriment. ‘Racial grounds’ means on the ground of colour, race, nationality or ethnic origins. Racial discrimination can include treating a person less favourably because of someone else’s race etc. For example, a receptionist who resigned b ecause she could not bring herself to comply with instructions from her employer to discriminate against black customers brought a successful race discrimination claim. The concept of racial harassment would fall within the remit of direct discrimination. There is no statutory definition of racial harassment but the Commission for Racial Equality (CRE) defines it as: ‘unwanted conduct of a racial nature, or other conduct based on race, affecting the dignity of women and men at work’. Typical forms of harassment include racist banter or taunts and jibes. 5.4.2 Indirect Discrimination This occurs where an employer applies a requirement or condition: 5.4.2.1 with which a considerably smaller number of people of the racial group in question can comply than persons not of that racial group; 5.4.2.2 which is not justifiable irrespective of the colour, race, nationality, ethnic or national origins of the person in question; and BIR_EMP/614232/01 -18- 5.4.2.3 which has operated to the detriment of a person who could not comply with it. 5.4.3 Victimisation The victimisation provisions are almost identical to those contained in the SDA 1975 (see above). 6. 6.1 SECTION 6: OCCUPATIONAL HEALTH AND SAFETY OCCUPATIONAL SAFETY Every employer who employs five or more employees must prepare and revise as appropriate and bring to the attention of its employees a written statement of its general policy on the health & safety at work of employees and the arrangements in force for carrying out that policy. An employer is under a common law duty to take reasonable care to protect its employees from risk of foreseeable injury, disease or death at work. To this end all employers must provide and maintain: a safe place of work; a safe system of work; and safe plant and appliances. An employer’s liability is not just to its workers, as the occupier of premises owes a duty of care to employees and other visitors. The duty of care is defined as: ‘a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor is reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’ An occupier of premises may be the owner, the lessor, or the licensee. There may be more than one occupier, in which case the duty of care will be divided between them. In addition to the common law duties, an employer also has a number of statutory duties imposed upon it in relation to its employees’ health and safety. The principal legislation is contained in the Health and Safety at Work etc Act 1974 (HSWA 1974), the Management of Health and Safety at Work Regulations 1992 and the Workplace (Health, Safety and Welfare) Regulations 1992. BIR_EMP/614232/01 -19- 6.2 WORKERS COMPENSATION Every employer in Great Britain is obliged to maintain an insurance policy with an authorised insurer against liability for bodily injury or disease sustained by employees and arising out of and in the course of their employment in Great Britain. Insurance companies issue annual certificates which must be displayed at the employer’s place (or places) of business so that they may be easily seen and read by every person employed there. If an accident occurs as a result of the employer’s failure to comply with its common law duties, it may be liable in negligence for any resulting injury or damage. In order to establish liability for negligence an injured employee must prove: that his employer owes him a duty of care; that the employer breached that duty; and that his injury was caused by that breach of duty. An employer may be vicariously liable for the negligent act of his employee if such an act is committed in the course of the employee’s employment. Breach of an employer’s statutory duties under HSWA 1974 imposes criminal liability on the employer. An employee bringing a claim for unfair dismissal for a reason related to health and safety is not required to have any period of qualifying service (usually 1 year). If the employee can demonstrate that his dismissal was for such a reason then it will be automatically unfair and it is not open to the employer to show that he acted reasonably in all the circumstances. For compensation limits, see paragraph 2.2.2.4. 7. 7.1 SECTION 7: IMMIGRATION VISA REQUIREMENTS Any individual wishing to take up employment in the UK must have the legal right to do so. Under the Asylum and Immigration Act 1996, it is a criminal offence for employers to take on employees whose immigration status prevents them from working in the UK. The offence carries a maximum fine of £5,000 for each offence. The most common form of permission to work is a Work Permit. If an employer wishes to employ a foreign national he must first apply to the Overseas Labour Service for a work permit on his behalf. Work Permits are not needed in certain BIR_EMP/614232/01 -20- circumstances (eg self employed persons) but another form of entry clearance must then be obtained from the Home Office. The work permit scheme is administered by the Overseas Labour Service (OLS) and is divided into three categories: • • • the business and commercial scheme ; the training and work experience scheme; work permits for entertainers and sportspersons. The main business and commercial work permit scheme aims to achieve the right balance between enabling UK employers to recruit or transfer key people from outside the European Economic Area (EEA) to work in the UK and safeguarding the interests of the resident labour force. Work permits are issued to a specific person for a specific position with a specific employer. A Work Permit application from an employer will b considered against e four basic criteria:• • • • whether a genuine vacancy exists; what skills, qualifications and experience are needed to do the job; whether the person is suitably qualified and experienced; and whether there are suitable qualified and experie nced “resident workers” available. BIR_EMP/614232/01 -21-