1. The impact of employment law at the start of the employment relationship
A. Internal and 2 external factors that impact on the employment relationship
The best and most productive organizations have a very content workforce that all pull in the same direction. Therefore it is essential that a business identifies any issues that can impact on employee relations as soon as possible. There are a number of factors both internal and external that can influence these relationships; here are a few of them:
Internal factors include:
i. Pay and Rewards – pay and rewards attract, motivate and retain staff. The employment contract which lists rewards, whether it be pay, bonus or benefits can remove animosity amongst employees and employers. However, recent research reveals that employees are no longer motivated by a financial reward alone, but react positively to training and development to enhance their career progression.
ii. Organization Culture – this concentrates on the behavior and morals of employees within a company. The culture can have a huge effect on the employment relationship. For example, if there is the ethos of flexible working hours and employee involvement, then it stands to reason that the employees will be more likely to accede to any changes in the terms and conditions of their employment.
External factors include:
i. Pay and Rewards – the competition for better rewards can result in employees demanding extra pay and benefits. However, a decline in the current economic growth has diminished demands resulting in less conflict. In times of slow economic growth, many employees are simply grateful to have a job, although the need to still earn a certain level of income remains the same.
ii. Technology – new, and improvements to existing technology can result in redundancies and reduced hours. This can affect the remainder of the employees who may feel demotivated and left wondering if they will be next. However, employees can use this to their advantage by training and developing new skills in different areas meaning they can demand extra pay.
B. Different types of employment status and three reasons why it is important to clearly determine an individual’s employment status are:
i. A self-employed person is not an employee of the organization and therefore employment legislation does not generally cover them. However, they are legally entitled to certain rights such as health and safety protection, fair treatment and breaks. Someone who is self-employed contracts for his/her service. He/she will set the hours of work and has no right to expect work. They are responsible for their invoices and PAYE. Their contract is by service and not time. Unlike a permanent employee, a self-employed person is not subject to disciplinary procedures.
ii. Agency workers are now entitled to similar terms and conditions as those given to permanent staff. Under these regulations, agency workers can benefit from holiday pay, rest breaks and time of for ante-natal appointments (if the worker is pregnant). However, the agency worker needs to have worked in the same job with the same company for a qualifying period of 12 weeks for these regulations to apply. Some benefits are not covered by the regulations such as additional maternity/paternity leave.
iii. The Final employment status is an ’employee’. This is the most common status, and applies to the largest group of people in the workplace. The difference between workers and employees are that as an employee you have a wider range of employment rights and responsibilities to and from your employer, such as Statutory Sick Pay, and Statutory Redundancy Pay.
All of the above types of employment status will have certain mutual agreements with the employer. These could be verbal or written agreements with expressed and implied terms. All will have assumed rules of work so it is important that HR, line managers and employees are aware of their status as not all rules apply to each.
2. The employee rights during the employee relationship
A. The importance of work life balance and related legislation concerning holidays, rest periods, working hours and night working
Work-life balance is achieved when an individual’s right to a fulfilled life inside and outside paid work is accepted and respected as the norm, to the mutual benefit of the individual, business and society. It is important for employees to be able to balance their life at work and at home, as having an equal balance can lead to a motivated and retained workforce. Legalization plays a vital role on how work-life balance can be implemented. By implementing a positive work/life balance, companies are successful, secure a good reputation and promote positive employee relations. The Working Time Regulations 1998 stipulates that employers should provide employees with the following basic rights:
28 days holiday (paid) for full time employees (part-time employees would receive this on a pro rata basis)
a rest period of 20 minutes every 6 hours worked
11 hours rest every 24 hours
a maximum of a 48 hour working week
a maximum of 8 hours’ work in 24 hours for night workers
B. Family/parent-related legal support, including maternity leave, paternity leave, adoption leave and dependent’s leave
The Maternity and Parental Leave (Amendment) Regulations 2001, The Employments Right Act 1996 and the Employment Act 2002 promote family/parent related support and work/life balance and include:
Maternity leave – right to be paid for ante-natal appointments; maintain benefits; return back to same job (after OML) and receive 39 weeks’ statutory maternity pay (if she has 26 weeks continuous service with her employer by the 15th week before the baby is due). She is entitled to 52 weeks leave in total.
Paternity leave – ordinary paternity leave is 2 weeks (if he has 26 weeks continuous service as above); and an additional 2-26 weeks leave once the partner has returned to work from maternity leave.
Adoption leave – employees with qualifying service (26 weeks continuous employment) have the right to take 52 weeks of statutory adoptions leave (26 weeks ordinary and 26 weeks additional). If both parents work for the same company, the other employee can take 26 weeks APL. This can be taken between 20 and 52 weeks after the adoption has taken place.
Dependent’s leave – employees have the right to unpaid time off to deal with emergencies involving a ‘dependent’. This could be a husband, wife, partner, child, parent, or anyone living in the same household as a member of the family. A dependent may also be anyone who reasonably relies on help in an emergency, for example an elderly neighbor.
In addition, qualifying employees may take a total of 13 weeks’ unpaid leave during the first 5 years of their child’s life (or 18 if the child is disabled or adopted). This should be taken in blocks on 1 week or more and is limited to 4 weeks per year. Same sex partnerships are also entitled to paternity and adoption leave rights.
C. Reasons why employees should be treated fairly in relation to pay
The right to fair treatment by the employer includes the right that employees are treated fairly in relation to pay. The purpose of the Equal Pay Act 1970 is to eliminate discrimination between men and women in terms of pay. One reason that justifies treating employees fairly in relation to pay is that lower earnings make it harder for women to take care of their families. A report from the Institute for Women’s Policy Research found that if women were paid fairly, single women’s income would rise by 13.4%, single mothers would earn 17% more.
“This would greatly increase the ability of women from all economic backgrounds to provide basic support to their families” – (Smith 2009). If salaries are particularly lower for women this would reflect in their benefits package, and these benefits should be based on the annual salary, and salaries should be in sync to the levels which are assigned to the job. This ensures salaries are fair for the job being performed, regardless of gender, race, or age, to ensure there is no discrimination among employees.
D. The main points of equalities legislation including the concepts of direct and indirect discrimination, harassment and victimization
According to Naires (1999) to discriminate is “to single someone out for a special favor or disfavor’
i. Direct Discrimination
ii. Indirect Discrimination
i. Direct discrimination is whereby an employer directly discriminates on the grounds of the person’s age, race, sex, disability, religion or sexual orientation. For example: A shop owner who refuses to hire suitably qualified people simply because they are of a certain race or ethnic origin, or an employer who specifies in a job advert that only young people should apply even though the job in question could be done perfectly well by an older person.
ii. Indirect discrimination occurs where the effect of certain requirements, conditions or practices imposed by an employer has an adverse impact disproportionately on one group or other. For Example, A translation company insists that all those applying for jobs as translators have driving licenses because there is an occasional need to deliver or collect work from clients. Since this prevents some people with disabilities from applying and as driving is not a core requirement for doing the job, the company is effectively discriminating against this particular group of people, unless it can demonstrate that there is an objective reason to justify this measure.
Another Example, A department store prohibits its employees from wearing hats when serving customers. This rule means that people whose religious beliefs require them to cover their heads, such as Muslim women, are prevented from working in the shop. The store is indirectly discriminating against this group of people unless it can demonstrate that there is an objective reason to justify the policy.
iii. Victimization is where an employer treats an employee less favorably for one reason or another. It can occur when an employee is singled out for using their workplace complaints procedures or exercising their legal rights. For example: Bringing a complaint of discrimination or giving evidence or information on behalf of another employee who has brought proceedings for discrimination. An employee will not be protected if they have maliciously made or supported a complaint that is false.
iv. Harassment is where an employer or an employee violates another person’s dignity or creates an uncomfortable or offensive environment for them. Harassment may be against one or more people and involves an inappropriate abuse of power. It may involve single or repeated incidents ranging from extremes forms of intimidating behavior, such as physical violence, to more subtle forms such as ignoring someone. It can often occur without witnesses. Examples include:
unwanted physical contact
unwelcome remarks about a person’s age, dress, appearance, race or marital status posters, graffiti, obscene gestures, flags, bunting and emblems isolation or non-cooperation and exclusion from social activities coercion for sexual favors
pressure to participate in political/religious groups
personal intrusion from pestering, spying and stalking
failure to safeguard confidential information
shouting and bawling
setting impossible deadlines
persistent unwarranted criticism
E. The concept of the ‘psychological contract’ and examples of policies and procedures which can underpin this
The psychological contract includes the perceptions of employer and employee of what their mutual obligations are towards each other and can be distinguished from the legal contract of employment which may offer only a limited and uncertain representation of the reality of the employment relationship. The employee may have contributed little to its terms beyond accepting them.
The psychological contract on the other hand looks at the reality of the situation as perceived by the parties, and may be more influential than the formal contract in affecting how employees behave from day to day. It is the psychological contract that effectively tells employees what they are required to do in order to meet their side of the bargain and what they can expect from their job. It may not – indeed in general it will not – be strictly enforceable, though courts may be influenced by a view of the underlying relationship between employer and employee, for example in interpreting the common law duty to show mutual trust and confidence.
Many organizations articulate their psychological contracts indirectly through their websites and recruitment literature etc. which describe what they expect from an employee, and what the employee can expect from them. For example a well-known food chain company website suggests that the company expects its people to be reasonably hard working, have a good sense of humor, enjoy delicious food and start and leave work early. Employees for their part get paid as much as the company can afford, join a cosmopolitan atmosphere, and receive training and development, and internal promotion opportunities.
3. Issues to be addressed at the termination of the employment relationship
A. The difference between fair and unfair dismissal
There must be a fair reason for an employee to be dismissed and in order to achieve this, the employer must take reasonable steps to prove that the dismissal is justified (that is, there was negative impact on the company – for example a breach of health and safety) and act accordingly in arriving at the decision to dismiss. Some examples of a “fair” dismissal are redundancy – where the work for which an employee was employed has ceased; capability – where the employee is no longer able to perform the type of work for which he/she was employed, i.e. health reasons; and conduct – where the employee has failed to meet reasonable expectations/instructions and legal restrictions – this could be if a coach driver loses his PSV license and there is no other position for him in the company. Employers must show that they act (or have acted) reasonably and have followed procedure.
Examples of a company taking reasonable steps are informing the employee of their rights, taking into considering the employee’s past record and explore (in cases of misconduct) whether the company has provided adequate training. Employers should consult the ACAS Code of Practice to ensure that all steps are taken.
If the ACAS Code of Practice is not followed, employers can face claims of unfair dismissal. The basis of being dismissed unfairly is that all employees have the right to be treated fairly. If the employee is to make a claim, he/she must demonstrate that the dismissal was without reason. Investigations into an unfair dismissal may prove that the employer did not follow the correct policy and process, that it failed to conduct a full investigation and that the employee was not informed of their right to appeal.
If a company follows the correct procedure for dismissals, they will maintain a positive working relationship with their existing employees. Companies also maintain their “employee brand” as there will be no bad press.
B. The importance of exit interviews to both parties
The exit interview provides an opportunity to allow the employer and employee to discuss their reasons for leaving. Exit interviews can sometimes prove difficult to collect information, as some employees prefer, or are not willing to disclose their reasons for leaving or any problems they have had.
The importance of an exit interview to employers is that, if conducted well they provide an excellent opportunity to gain insight into employees’ perceptions of the organization overall, underlying workplace issues and managerial leadership. They may even be able to change the person’s mind. The importance of an exit interview for the employee is to voice their views and give honest feedback on their working experience during their time at the Company. This also gives them a chance to suggest improvements to their role and to draw a line under their employment relationship.
C. The key stages to be followed in managing redundancies
Redundancy can occur when the employer’s business (or part of the business) ceases to trade; the company relocates or, there is a downturn in the current economic climate. If a redundancy situation should occur, it is good practice for employers to meet with all staff, involve them in finding solutions and identify alternatives (such as flexible or reduced working hours). By involving staff, employees are made to feel important and that their views and ideas are also important. This creates a good atmosphere in a somewhat bad situation. However, if no solution can be found, employers should adhere to the following key stages when managing redundancies:
Identify the financial aspects
Appoint representatives (if no trade union)
Consult with staff on the situation and process
Provide the opportunity for “voluntary” redundancy or a sabbatical
Keep staff informed of the numbers
Provide interview and CV tips
Meet with key staff and provide a notice period
Allow reasonable time off for interviews/job hunting
Right to appeal against the decision
By following these simple steps, the employer and employee can maintain a positive relationship which can be mutually beneficial to both parties in situations where redundancies have occurred due to a decline in the economy. This is because, when the market grows again, and a positive relationship has been maintained, there is a greater chance of the employee being re-employed.