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LRD guides and handbook May 2013
Law at Work 2013
Introduction
Introduction (2,605 words)
This is the year of the perfect storm for trade union reps. An ideological attack on hard won employment rights is being conducted alongside ...
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Chapter 1
1. THE EMPLOYMENT LAW SYSTEM (698 words)
Employment rights in the UK come from two main sources. The first is legislation enacted by Parliament in the form of Acts of Parliament or ... Subscribers only
The employment tribunal system (469 words)
Most employment claims are heard by employment tribunals, although some cases must be brought in the ordinary civil courts (the County Court or High ... Subscribers only
Bringing a tribunal claim (209 words)
To bring a tribunal claim, you must first submit the claim on the specified claim form (ET1) and complete all the required information on the form. ... Subscribers only
Tribunal fees (1,062 words)
Perhaps the most damaging of all the coalition’s changes to employment law is the planned introduction of tribunal fees. From around July 2013, a ... Subscribers only
Acas Pre-claim conciliation (103 words)
The Advisory and Conciliation Service (Acas) currently offers free voluntary pre-claim conciliation, which in 2011, conciliated approximately 15,000 ... Subscribers only
Acas compulsory conciliation — from Spring 2014 (123 words)
From Spring 2014, all tribunal claims are to be subject to compulsory Acas conciliation. Guidance is to be provided by Acas. The power to order ... Subscribers only
What happens to a claim issued in the tribunal? (150 words)
When the tribunal receives the Claim form (ET1), it sends a copy to the employer and invites the employer to respond by completing the response form ... Subscribers only
Time limits (311 words)
The application must be submitted within the time limits laid down for each piece of employment legislation. Time generally runs from the date of ... Subscribers only
Pre-hearings and deposits (655 words)
Before a claim reaches a full hearing, an Employment Judge may hold a case management discussion to deal with matters relating to the procedure and ... Subscribers only
The hearing (356 words)
Once any preliminary issues have been resolved, the claim proceeds to a full hearing. This nearly always takes place in public. In cases involving ... Subscribers only
Adjournments (327 words)
If you need to request an adjournment, you must make an application to the tribunal, and provide evidence to support your application, explaining ... Subscribers only
Witness statements (220 words)
In England and Wales, each side prepares witness statements, setting out the facts relating to the claim. In Scotland, witness statements are not ... Subscribers only
Costs orders (511 words)
As a rule, each party has to meet its own legal costs, but there are circumstances in which costs may be awarded. ... Subscribers only
Employment Appeal Tribunal (EAT) (276 words)
Either side can appeal against a tribunal decision, but only if there has been an error of law or the decision was perverse (meaning that no ... Subscribers only
Other courts (91 words)
Some cases go to the ordinary courts rather than to the tribunals. For example, police prosecutions for offences to do with picketing go to either ... Subscribers only
Compromise agreements (424 words)
Legally binding settlements, in which the parties refrain from issuing or continuing proceedings, can be agreed before a case reaches a tribunal. ... Subscribers only
Personal injury claims (159 words)
Very significant changes have been made to the funding of personal injury claims (including workplace personal injury) by the Legal Aid, Sentencing ... Subscribers only
More information (107 words)
For a detailed critical analysis of the changes to the tribunal system and their likely impact on claimants see Justice Deferred: a critical guide ... Subscribers only
Chapter 2
2. CATEGORIES OF WORKER (207 words)
There are legal distinctions between an employee, a worker and someone who is genuinely self-employed. These distinctions are important because ... Subscribers only
Main employment rights (235 words)
The box below sets out the main employment rights applying to workers and employees. ... Subscribers only
Employee, worker or self-employed? (142 words)
The question whether an individual is an employee, worker or self-employed is complicated, but it is best to start with the statutory definition ... Subscribers only
Mutuality of obligation (428 words)
The courts have established the concept of mutuality of obligation between an employer and an individual who works for the employer. This is an ... Subscribers only
Obligation to carry out work personally (592 words)
Another requirement that is common to both workers and employees is the need for the individual to personally carry out the work. A person who is ... Subscribers only
Degree of control (301 words)
Mutuality of obligation and an obligation to carry out work personally are core requirements of both “employee” and “worker” status. The ... Subscribers only
Independent contractors (514 words)
Sometimes the issue is not whether the individual is a worker or an employee, but whether or not they are genuinely self-employed. ... Subscribers only
Bogus self employment (83 words)
A 2012 report by construction union UCATT, The Great Payroll Scandal, has exposed how payroll companies are used in the construction industry to ... Subscribers only
Casual workers (115 words)
With the growth of insecure or “casual” working models, it is important to be clear about the employment rights of so-called “casual workers”. ... Subscribers only
Rights during each assignment (90 words)
While working on each separate assignment, unless they are genuinely self-employed, casual workers will be either employees or workers, depending on ... Subscribers only
Rights of casual workers between assignments (255 words)
Whether casual workers have any rights between assignments will depend on the contractual arrangements between the parties — worked out primarily ... Subscribers only
“Zero hours” contract workers (292 words)
Another unwelcome variation of “casual” or “relief” work is the “zero hours” contract. Under a zero hours contract, the employer does ... Subscribers only
Homeworkers (101 words)
There is nothing in principle to prevent a homeworker from being a worker or an employee. Their employment status will be decided following the ... Subscribers only
Volunteers (143 words)
Genuine volunteers are not employees or workers because there is no mutuality of obligation. There is no legal obligation on the volunteer to do ... Subscribers only
Interns (161 words)
An intern is not a legal concept, and whether or not an intern is entitled to employment rights, such as the right to the National Minimum Wage, or ... Subscribers only
Young workers (181 words)
The Working Time Regulations 1998 give young workers (those under 18 but above school leaving age) the right to a rest break of at least 30 minutes, ... Subscribers only
Apprentices (544 words)
An employer takes on an apprentice to provide that person with the training and work experience necessary to qualify in a particular trade. ... Subscribers only
Children (194 words)
Children under the age of 13 years cannot be employed in any capacity. Thirteen-year-olds can do light work that is not harmful to their health and ... Subscribers only
Part-time workers (903 words)
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) define a part-time worker as any worker whose hours are less ... Subscribers only
Temporary (fixed-term) employees (1,064 words)
Employees on fixed-term contracts (also known as temporary employees) are entitled to equivalent rights and treatment as permanent employees under ... Subscribers only
Agency workers (116 words)
Agency workers are entitled to all the basic statutory rights and benefits of workers, ... Subscribers only
Rights under the Agency Workers Regulations 2010 (504 words)
Since 1 October 2011, agency workers have been entitled to additional rights under the Agency Workers Regulations 2010 (AWR 2010). These rights are ... Subscribers only
The Swedish derogation (200 words)
Under the AWRs, there is one exemption from the right to equal pay (although not from the right to equal treatment on holidays and working time). ... Subscribers only
AWRs to be reviewed (67 words)
In Summer 2013, the government will conduct a “paperwork review” of the AWRs — “to ensure that the practical arrangements necessary for ... Subscribers only
Other rights for agency workers (194 words)
The conduct of employment agencies is regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses ... Subscribers only
Can an agency worker bring a claim for unfair dismissal? (476 words)
No. Only employees can bring claims for unfair dismissal. A decade ago, a landmark decision of the Court of Appeal, Brook Street Bureau (UK) Ltd v ... Subscribers only
More information (52 words)
More information about the Agency Workers Regulations can be found in the LRD guide: The Agency Workers Regulations price (£5.25) - ... Subscribers only
Crown employees (250 words)
Crown employees (those who work for government departments and agencies including civil servants) are entitled to most of the statutory rights set ... Subscribers only
Working outside the UK (404 words)
With closer ties developing between European states, more workers find themselves working outside the UK. Under the European Posting of Workers ... Subscribers only
A new Employment Status: Employee Shareholders (387 words)
In a proposal that, according to the TUC, “defies logic” the government is pressing ahead with a proposal to introduce Employee Shareholder ... Subscribers only
Chapter 3
3. STARTING WORK AND THE EMPLOYMENT CONTRACT (905 words)
Most employers require a reference before they will employ someone. Young workers starting work for the first time are likely to come with ... Subscribers only
Checking the right to work in the UK (301 words)
Since 1997 it has been a criminal offence for an employer to employ someone who has no legal right to work in the UK under the Asylum and ... Subscribers only
Ban on pre-employment health checks (235 words)
Section 60 of the Equality Act 2010 introduced a ban on asking pre-employment questions to job applicants about their health, including whether they ... Subscribers only
Criminal convictions (265 words)
The Rehabilitation of Offenders Act 1974 says individuals whose convictions are regarded as “spent” after a period of rehabilitation do not have ... Subscribers only
Disclosure and Barring Checks (previously called Criminal Records Checks) (230 words)
Changes were made to the law on criminal records checks in 2012 under the Protection of Freedoms Act 2012, which set up the new Disclosure and ... Subscribers only
Government plans for an online portable DBS checking system (81 words)
Individuals are often asked to meet the cost of DBS checks themselves. Especially for low-paid workers on a series of short-term contracts, the need ... Subscribers only
Ban on questions about pension opt-out during recruitment (102 words)
Since 1 July 2012, it is unlawful for an employer or employer’s representative (for example, a recruitment agency) to ask workers during the ... Subscribers only
The employment contract (325 words)
The employment contract is fundamental to every employment relationship because it sets out the terms and conditions under which work is to be done ... Subscribers only
Written statement of employment particulars (597 words)
Under sections 1 and 2 of the Employment Rights Act 1996 (ERA 96), employees have the right to a written statement of particulars of their employment. ... Subscribers only
Terms of the contract (48 words)
The employment contract sets out the rights and obligations of the employee and the employer. Contractual terms can be written down or verbally ... Subscribers only
Express terms (978 words)
Express terms are those terms that have been specifically agreed by the employer and employee, whether or not in writing. An express term can ... Subscribers only
Implied terms (1,790 words)
If terms have not been expressly agreed, they can be “implied” through conduct or custom and practice. If the conduct of the parties ... Subscribers only
Works rules and collective agreements (1,820 words)
Works rules, guidelines or rules about how work should be carried out can be part of the contract, even if the employee has no option but to accept ... Subscribers only
Illegal clauses (558 words)
If the employer proposes something illegal in the contract, such as a method for non-payment of tax by paying “cash in hand”, or paying part of ... Subscribers only
Restrictive covenants (327 words)
If an employer wants an employee to be bound by terms after their employment has ended, for example, to restrict who they can work for or to protect ... Subscribers only
Contract changes (1,500 words)
Employers should never introduce contract changes without consulting either the union, other employee reps (if there is no recognised union) or the ... Subscribers only
Breach of contract (674 words)
If the employee does not agree to proposed changes and the employer goes ahead and changes them unilaterally, this is generally a breach of contract. ... Subscribers only
Forcing change by terminating contract and offering new (worse) terms (365 words)
Increasingly, employers who fail to secure the consent of the workforce to a contract change are responding by giving notice to end the contracts of ... Subscribers only
Other remedies (262 words)
If the contractual change results in a loss of pay, a worker can bring a claim under Part II of the ERA 96 for outstanding wages (see Chapter 4: ... Subscribers only
More information (29 words)
See the LRD Booklet Contracts of employment — resisting changes (£5.80) - www.lrdpublications.org.uk/publications.php?pub=BK&iss=1475 ... Subscribers only
Chapter 4
4. RIGHTS TO PAY AND CONDITIONS (204 words)
Under the National Minimum Wage Act 1998, UK workers have the right to a minimum wage, currently set at £6.19 an hour for those aged 21 or over (£6. ... Subscribers only
Who is eligible for the National Minimum Wage (264 words)
Workers, including agency and homeworkers, are entitled to the National Minimum Wage (NMW), as is anyone who works for another person, except those ... Subscribers only
Excluded workers (74 words)
Some groups of worker are excluded from the right to the minimum wage. These include: the genuinely self-employed; share fishermen; genuine ... Subscribers only
How the National Minimum Wage is calculated (781 words)
There are different methods of calculating the hourly rate of pay for the purposes of the National Minimum Wage, depending whether the worker is ... Subscribers only
Bringing a claim for the National Minimum Wage (339 words)
The law requires employers to keep adequate records showing they are paying the minimum wage and a worker is entitled to inspect his or her ... Subscribers only
Government plans for change (166 words)
The government has announced a plan to consolidate the NMW regulations and plans to publish draft revised regulations during 2013. ... Subscribers only
Pay slips and pay intervals (143 words)
Every employee must be given, by their first pay date, an itemised pay statement listing gross wages, deductions and net wages (section 8, ... Subscribers only
Deductions and underpayments (1,137 words)
An employer is only entitled to make deductions from a worker’s pay ... Subscribers only
Overpayments and other exceptions (626 words)
A worker cannot bring a claim for unlawful deduction from wages in the employment tribunal if the reason for the deduction is that the employer has ... Subscribers only
Guarantee pay (638 words)
Employees laid off or on short-time working should receive their normal pay (Miller v Hamworthy Engineering [1986] IRLR 461) unless there is a clear ... Subscribers only
Medical suspension pay (173 words)
Employees suspended by their employer on medical grounds because of a statutory requirement are entitled to medical suspension pay (section 64, ERA 96 ... Subscribers only
Maternity suspension (109 words)
Under the Management of Health and Safety at Work (Amendment) Regulations 1999, and sections 64-70 ERA 96), employees and agency workers with at ... Subscribers only
Overtime pay (162 words)
Overtime pay is only due where there is an express or implied contractual right (See Chapter 3). For ... Subscribers only
Pensions (254 words)
The entitlement to an occupational pension depends on the terms and conditions of the employment contract, but there have also been significant ... Subscribers only
Working hours and breaks (166 words)
The Working Time Regulations 1998 (as amended) limit the length of the working day and the working week. The regulations cover workers and not just ... Subscribers only
Opting out of the 48-hour week (364 words)
The regulations allow individuals to opt out of the 48-hour limit. Any opt-out agreement must be entirely voluntary and must be in writing. The ... Subscribers only
Time on call (265 words)
Working hours can include time on call, provided the employee has to remain on the employer’s premises even when not doing any work. Only “on ... Subscribers only
Nightworkers (46 words)
There are separate rules covering night workers (those working at least three hours between 11pm and 6am). In general, a worker should not work more ... Subscribers only
Rest breaks (202 words)
The regulations also entitle workers to an uninterrupted rest break of at least 20 minutes if the working day is more than six hours. There is no ... Subscribers only
Automatically unfair dismissal (208 words)
It is automatically unfair to dismiss an employee for asserting a statutory right such as the right to a rest break under the Working Time ... Subscribers only
More information (83 words)
Tribunal fees: A claim for failure to limit weekly or night working time or to ensure rest breaks is classified by the government as a Type A Claim ... Subscribers only
Working hours and religious observance (550 words)
Under the Sunday Trading Act 1994, shopworkers who were in employment prior to 24 August 1994 and were not Sunday workers, or who have given their ... Subscribers only
Holidays (1,333 words)
All workers have the right to a minimum of 5.6 weeks’ paid holiday a year (equivalent to 28 days for someone who works a five-day week) under the ... Subscribers only
Holidays and sickness absence (74 words)
There has been a series of recent decisions by the European Court of Justice (ECJ) about the relationship between the WTRs and sickness absence. ... Subscribers only
Workers build up holiday while off sick (80 words)
ECJ case law has established that a worker continues to build up annual leave while off sick, and can choose between taking paid holiday while off ... Subscribers only
Carrying forward unused holiday after sickness (321 words)
A worker who has not had the opportunity to use up all their statutory holiday during the holiday year because of sickness must be allowed to carry ... Subscribers only
The right to paid holiday when off sick is not dependent on making a request to take that holiday (576 words)
In a case backed by Unite, the Court of Appeal has confirmed that there is no need for a worker who is off sick to ask to take or carry forward her ... Subscribers only
Falling ill while on holiday (285 words)
A worker who falls ill either while on holiday or before starting a pre-booked holiday is entitled to take the leave again at a later date, if ... Subscribers only
Bank holidays (110 words)
There is no statutory right to bank holidays. Any entitlement to bank holidays is purely contractual: either through an express contractual term or ... Subscribers only
Time off for public duties (259 words)
Employees who hold certain public offices have the right to a “reasonable” amount of time off to perform their duties under section 50 of the ... Subscribers only
Time off for study or training (427 words)
Since 6 April 2009, individuals working in organisations with 250 employees or more have a statutory right to request time off for study or training. ... Subscribers only
More information (84 words)
Other statutory rights to time off are explained in the following chapters: trade union duties and activities and employee representatives — ... Subscribers only
Chapter 5
5. UNION AND COLLECTIVE ORGANISATION (308 words)
Union and collective organisation rights are principally governed by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which ... Subscribers only
The right to recognition (24 words)
To gain access to many of the rights covered in this chapter the union must be recognised by the employer. ... Subscribers only
Voluntary recognition (207 words)
Where UK employers recognise a trade union for collective bargaining purposes, this is usually based on a voluntary agreement between the parties. ... Subscribers only
Statutory recognition (337 words)
TULRCA provides a mechanism through which unions can gain statutory recognition, even where the employer is implacably opposed to it. However, the ... Subscribers only
The statutory recognition procedure (1,213 words)
The CAC has to first accept the application as valid. It will do this only if the union demonstrates that it already has at least 10% of the ... Subscribers only
The need for a ballot (670 words)
If the union has recruited more than half the workers in the bargaining unit, the CAC may be able to award recognition without the need for a ballot. ... Subscribers only
Derecognition (196 words)
The legislation also sets out the circumstances where the employer or workers can apply to the CAC to have a union with statutory recognition ... Subscribers only
Territorial scope (132 words)
This year saw an important decision on the territorial scope of the statutory recognition machinery, which will be useful for unions with many ... Subscribers only
Protection of union members (187 words)
Under section 137 of TULRCA, there is a statutory right not to be refused work on the grounds of membership or non-membership of a union or because ... Subscribers only
Anti-union blacklists (530 words)
Since 2010 anti-union blacklists have been outlawed under the Employment Relations Act 1999 (Blacklists) Regulations 2010. The regulations prohibit ... Subscribers only
Major anti-blacklisting breakthrough (72 words)
In March 2013, trade unions achieved a major breakthrough by securing agreement from the employer representatives on the Construction Industry Joint ... Subscribers only
More information (68 words)
Anyone who thinks they may be on a blacklist should contact the Blacklist Support Group for advice and support. Their blog and contact details can ... Subscribers only
Victimisation (981 words)
Individual members of unions have protection against victimisation from their employer. They have the right not to have action short of dismissal ... Subscribers only
Interim relief (449 words)
If an employee is dismissed on grounds of their union activities they are entitled to claim interim relief at an employment tribunal. Interim relief ... Subscribers only
Right to time off (758 words)
Union lay officials, including shop stewards, staff reps and branch secretaries of recognised unions, have the right to time off with pay (based on ... Subscribers only
Rights to information (297 words)
Section 181 of TULRCA says that, for the purpose of collective bargaining, employers have a duty to disclose, to representatives of independent ... Subscribers only
Employee reps and European Works Councils (281 words)
In companies with operations in two or more European Union states employing more than 1,000 employees in total (minimum 150 employees in at least ... Subscribers only
National level information and consultation (225 words)
Since April 2005, under the Information and Consultation of Employees Regulations 2004, UK employers have to establish consultation bodies for the ... Subscribers only
Internal union matters (738 words)
A number of internal union procedures are also regulated by legislation. The main areas covered by the law are bars on membership, internal union ... Subscribers only
More information (49 words)
LRD ... Subscribers only
Chapter 6
6. DISCRIMINATION (46 words)
The Equality Act 2010 (EA 10) became law on 8 April 2010. With some important exceptions, it largely replicates the laws it replaced. It ... Subscribers only
Political context (429 words)
Equality legislation has been under consistent attack since the start of the coalition government, both through repeals to the EA 10 and by making ... Subscribers only
Available guidance on the Equality Act 2010 (109 words)
On 6 April 2011, the Employment and Human Rights Commission issued a Code of Practice on Employment (the EHRC Code) which can be downloaded from the ... Subscribers only
The Protected Characteristics (133 words)
The Equality Act 2010 (EA 10) prohibits discrimination because of one of the following characteristics, referred to in the Act as “protected ... Subscribers only
Age (280 words)
“Age” in the context of discrimination legislation can refer to a particular age, or to an age group or range. For example, compulsory ... Subscribers only
Disability (117 words)
Under section 6 of the EA 10, a person has a disability if they have a “physical or mental impairment” that has a “substantial and long term ... Subscribers only
What are normal day-to-day activities? (69 words)
There is no longer a statutory list of day-to-day activities. Instead, the individual must be able to produce evidence that their own normal ... Subscribers only
Proving the existence of disability (390 words)
To have a disability, an individual’s condition must have a substantial impact on their ability to carry out day-to-day activities. It is for the ... Subscribers only
Statutory guidance on the meaning of disability (452 words)
The Office for Disability Issues published revised statutory guidance in May 2011: Guidance on matters to be taken into account in determining ... Subscribers only
Certain conditions are deemed to be a disability (69 words)
Someone with cancer, HIV or multiple sclerosis is protected by the EA 10 automatically on diagnosis. There is no need, for example, to show evidence ... Subscribers only
Progressive conditions (61 words)
There are special rules for progressive conditions (see Schedule 1, Paragraph 8 EA 10). Someone with a progressive condition is protected as soon as ... Subscribers only
Conditions that can be corrected by medication or treatment (60 words)
The EA 10 (Schedule 1 Part 1 section 5(1)(b)) says that where the effects of an impairment can be removed by using interventions, for example drugs ... Subscribers only
People who had a disability but have since recovered (80 words)
The EA 10 continues to protect someone who was disabled in the past, even though they have since recovered. For example, a woman who, four years ... Subscribers only
Recurring conditions (213 words)
Recurring conditions are covered by the EA 10, as long as there is evidence that the condition is “likely” to recur so as to have a substantial ... Subscribers only
Can a prospective employer ask about disability on the job application form? (32 words)
No. This is covered by new rules, found in section 60 EA 10. For information on this, see Chapter 3. ... Subscribers only
Gender reassignment (270 words)
A person has the protected characteristic of gender reassignment if he or she is proposing to undergo, is undergoing or has undergone a process (or ... Subscribers only
Marriage and civil partnership (87 words)
To be protected because of marriage or civil partnership, an individual must be married or have a civil partner. Someone who is intending to take ... Subscribers only
Race (130 words)
Section 9 of the EA 10 says that race ... Subscribers only
Caste (77 words)
In a u-turn following two defeats in the House of Lords, in April 2013 the government agreed to legislate to outlaw caste discrimination, which ... Subscribers only
Religion or belief (327 words)
The protected characteristic of religion or belief includes any religion or philosophical belief, as well as a lack of any religion or philosophical ... Subscribers only
Religious belief in the workplace (617 words)
In 2013, workplace discrimination based on religious belief was in the news with four landmark cases decided in a combined judgment of the European ... Subscribers only
Political belief in the workplace (166 words)
In 2012, the European Court of Human Rights (ECHR) decided that the United Kingdom was in breach of the European Convention on Human Rights in ... Subscribers only
Pregnancy or maternity (313 words)
Under section 18 of the EA 10 (Pregnancy and maternity discrimination: work cases), it is unlawful to treat a woman unfavourably during the ... Subscribers only
IVF (73 words)
Women dismissed for undergoing IVF treatment whose ova have been fertilised but not yet implanted cannot rely on the laws against pregnancy or ... Subscribers only
Sex or Gender (21 words)
Section 11 of the EA 10 outlaws discrimination against either sex. The Act protects both men and women. ... Subscribers only
Sexual orientation (40 words)
Section 12 of the EA 10 outlaws discrimination because of sexual orientation. Sexual orientation means a person’s sexual orientation ... Subscribers only
Who is protected by the Equality Act 2010? (130 words)
As was the case under the laws that it replaced, the Equality Act 2010 (EA 10) prohibits discrimination ... Subscribers only
Volunteers (290 words)
In 2012, the Supreme Court confirmed that genuine volunteers are not protected from discrimination by the employment provisions of the EA ... Subscribers only
Are interns protected from discrimination? (140 words)
The protection of interns from discrimination is likely to depend on whether they can establish the existence of a contract to perform work ... Subscribers only
Workers outside Great Britain (71 words)
The Equality Act 2010 (EA 10) covers all those working in Great Britain (Northern Ireland is covered by separate legislation). ... Subscribers only
Seafarers and discrimination (67 words)
Since August 2011, special regulations, the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011, apply to seafarers. The regulations, ... Subscribers only
Illegal workers and discrimination (288 words)
As a general rule, an employer cannot escape responsibility for acts of discrimination merely by pointing to the fact that the contract is illegal. ... Subscribers only
Vulnerable workers and discrimination (137 words)
In a disappointing decision, Taiwo v Olaigbe ([2013] UKEAT/0407/12/ZT), the EAT dismissed a race discrimination claim by a Nigerian migrant domestic ... Subscribers only
What conduct is prohibited by the Equality Act 2010? (53 words)
There are two main types of discrimination under the Equality Act 2010 (EA 10), known as direct and indirect discrimination. In most cases a worker ... Subscribers only
Direct discrimination (190 words)
The EA 10 says that a person directly discriminates against another person if, because of a protected characteristic, they treat them less ... Subscribers only
What is less favourable treatment? (232 words)
Less favourable treatment is some sort of disadvantage suffered by the individual, for example, failure to gain promotion. However, the EHRC Code of ... Subscribers only
The need for a comparator (221 words)
The test for direct discrimination is “comparative”. In other words, it is about comparing the treatment received by the person with the ... Subscribers only
Associative discrimination and harassment (150 words)
The definition of direct discrimination is broad enough to prohibit discrimination against a person who does not have the protected characteristic ... Subscribers only
Perception discrimination and harassment (84 words)
The definition of direct discrimination is also broad enough to prohibit perception discrimination or harassment. This is where an employee is ... Subscribers only
Is there a defence to direct discrimination? (416 words)
No. There is no defence to direct discrimination. An employer is not allowed to justify less favourable treatment that is because of a protected ... Subscribers only
Are there any exceptions to the definition of direct discrimination? (271 words)
Yes, there are some ... Subscribers only
Indirect discrimination (1,137 words)
Indirect discrimination is defined in section 19 of the EA 10. This says that a person (A) indirectly discriminates against another (B) if A applies ... Subscribers only
Discrimination arising from disability (642 words)
Direct discrimination against a disabled person is unlawful. For example, it would be direct disability discrimination for an employer to single out ... Subscribers only
Harassment (37 words)
The term “harassment” is often used loosely in a work setting, to describe unpleasant or bullying behaviour, but in the context of the Equality ... Subscribers only
Defining harassment (78 words)
Section 26(1) of the EA 10 defines harassment as unwanted conduct which has the purpose or effect ... Subscribers only
What sort of conduct could amount to harassment under the EA 10? (495 words)
It could take many forms, for example, abusive language, name-calling, offensive screen savers, jokes, offensive emails, texts, cruel or offensive ... Subscribers only
Sexual harassment (251 words)
Sexual harassment is expressly outlawed by section 26(2) of the EA 10. This says that a person carries out harassment if he or she engages in ... Subscribers only
Associative harassment (39 words)
There can be unlawful harassment where an individual is harassed because of their association with another who has the protected characteristic, for ... Subscribers only
Perception harassment (33 words)
There can be unlawful harassment where an individual mistakenly believes the person has the protected characteristic, for example where a man is ... Subscribers only
Harassment “related to” the protected characteristic (112 words)
There can be harassment even though the offensive conduct is not because of a protected characteristic, but is simply related to it. For ... Subscribers only
Liability for third party harassment (151 words)
Section 40 of the EA 10 provides a specific remedy protecting workers from harassment by third parties such as suppliers and customers. However, ... Subscribers only
Employers’ liability for acts by agency workers (116 words)
Notwithstanding the planned repeal of section 40 of the EA 10, it is worth noting that employers remain liable for acts of harassment or ... Subscribers only
The employer’s duty to act (23 words)
Whenever there is a claim of harassment, the employer must investigate the claim properly, as quickly as possible. ... Subscribers only
Suspension (66 words)
Often the employer may need to suspend a co-worker accused of harassment. Any suspension should be on full pay and the alleged harasser is entitled ... Subscribers only
Other laws relevant to a claim for workplace harassment (145 words)
Other laws to combat harassment in the workplace ... Subscribers only
More information (25 words)
For more information and practical guidance, see the LRD guide for trade union reps, Bullying and harassment at work, 2012, price £7.20 ... Subscribers only
Victimisation (458 words)
“Victimisation” is often used in a general sense to refer to being picked on or bullied. However, it has a very specific legal definition in the ... Subscribers only
What happens after employment has ended? (128 words)
The legal duty on the employer not to victimise does not end just because the employment has ended. For example, if employers normally provide ... Subscribers only
The employer’s liability for discrimination and harassment (141 words)
Under the EA 10, an employer is liable for all unlawful acts committed by their employees in the course of employment, whether or not the employer ... Subscribers only
The employer’s ‘reasonable steps’ defence (274 words)
An employer is not liable for unlawful acts committed by an employee if the employer can show it took “all reasonable steps” to prevent the ... Subscribers only
What about harassment or discrimination outside work? (80 words)
For an employer to be liable, the harassment or discrimination must take place “in the course of employment”. This phrase has a wide meaning, ... Subscribers only
Practical applications of discrimination law in the workplace (370 words)
Job Adverts: It is unlawful to advertise a job stating that an individual must be of one sex, race, or any other protected characteristic. The only ... Subscribers only
Access to promotion and job changes (263 words)
Employers must ensure employees have equal access to jobs once in the workplace, including access to promotion. A practice that makes it more ... Subscribers only
Voluntary positive action in recruitment and promotion (298 words)
The law changed in April 2011, when the government enacted Section 159 of the EA 10. This provision allows (but does not compel) employers to engage ... Subscribers only
Terms and conditions (18 words)
It is unlawful to discriminate over employment terms and conditions because of a protected characteristic. ... Subscribers only
Exceptions to the ban on discrimination in terms and conditions (421 words)
National Minimum Wage: The EA 10 allows employers to pay young workers according to the age-related pay bands set out in the National Minimum Wage ... Subscribers only
Pay secrecy and information on the pay gap (59 words)
Note that section 77 of the EA 10 bans contract terms that prevent workers discussing their pay, as long as the purpose of those discussions is to ... Subscribers only
Dress codes (126 words)
Dress codes can discriminate if the employer imposes a requirement that disadvantages one group. In Department for Work and Pensions v Matthew ... Subscribers only
Disciplinary, capability and grievance procedures (248 words)
Disciplinary, capability and grievance procedures must be non-discriminatory. Examples of discrimination in such procedures have ... Subscribers only
Termination of employment (197 words)
Employers who dismiss for discriminatory reasons are in breach of equality law. Employees can bring a claim for discriminatory dismissal from the ... Subscribers only
Redundancy (22 words)
Employers must not use discriminatory criteria when carrying out redundancy selection or allocating redundancy packages. See Chapter 11: Selecting ... Subscribers only
Retirement (130 words)
Until 6 April 2011, a statutory retirement procedure was in force. This allowed an employer to give notice of retirement to any employee who was ... Subscribers only
Contractual retirement ages following abolition of the DRA (634 words)
With the abolition of the default retirement age (DRA), employers who want to forcibly retire employees once they reach a particular age must rely ... Subscribers only
The duty to make reasonable adjustments for disabled workers (194 words)
A key concept of the EA 10 is the duty, under section 20 of the Act, to make reasonable adjustments. This is a positive duty owed by the employer to ... Subscribers only
Auxiliary aids (69 words)
Section 20(5) of the EA 10 refers expressly to auxiliary aids. It says that where a disabled person would, but for the provision of an auxiliary aid ... Subscribers only
Physical features (82 words)
Section 20(4) of the EA 10 refers expressly to physical features. It says that where a physical feature puts a disabled person at a substantial ... Subscribers only
Substantial disadvantage (18 words)
The disadvantage must be substantial. This means “more than minor or trivial” (section 212(1) EA 10). ... Subscribers only
Reasonable adjustments and sick pay (112 words)
Treating a disabled employee more favourably than non-disabled staff by paying extra sick pay will rarely be a reasonable adjustment (O’Hanlon v ... Subscribers only
Only “reasonable” adjustments are required (336 words)
There is no requirement to make an adjustment that is not “reasonable”. Nor does the duty to make reasonable adjustments extend to requiring ... Subscribers only
What if the employer does not know the worker is disabled? (57 words)
The duty to make reasonable adjustments does not apply where the employer does not know, and could not reasonably be expected to know, that the ... Subscribers only
Equal pay (350 words)
The law on sex discrimination in pay and other contract terms is now found in Part 5 (Work) Chapter 3 (Equality of Terms) of the Equality Act 2010 ... Subscribers only
Sex equality clause (93 words)
Like the EPA 1970, the EA 10 (section 66 EA 10) operates by automatically implying a sex equality clause into every contract of employment, ... Subscribers only
What terms are covered by the sex equality clause? (477 words)
The equality clause applies to all contract terms, not just wages. It includes, for example, the right to sick pay, bonus payments, overtime, shift ... Subscribers only
What is equal work? (295 words)
There are three categories (Section 65 EA 10). Equal work ... Subscribers only
Who can an employee compare herself with? (545 words)
The person the woman compares herself with is called the comparator and must be a man (or men) in the same employment. Normally, but not always, the ... Subscribers only
What does “in the same employment” mean? (178 words)
A woman has to identify a man “in the same employment” who is doing equal work in order to bring a claim. Section 79 of the EA 10 says that a ... Subscribers only
The employer’s genuine material factor defence (312 words)
A claim for equal pay will not succeed if the employer can show that the difference in pay is genuinely due to a material factor which is not ... Subscribers only
The material factor must be genuine (249 words)
An employer must be able to produce evidence to show that the explanation offered is the real reason for the difference. ... Subscribers only
The employer’s reason must not be “tainted by sex” (96 words)
The employer’s reason for paying the men more must not itself be based on a discriminatory practice. For example, in Redcar & Cleveland ... Subscribers only
Indirect discrimination — the genuine material factor defence (352 words)
Sometimes the employer’s reason for paying more is indirectly discriminatory. For example, different pay rates based on length of service may ... Subscribers only
Part time work and equal pay (178 words)
The equal pay provisions of the EA 10 apply equally to part-time workers, who also have the benefit of the Part Time Workers (Prevention of ... Subscribers only
Pieceworkers and equal pay (56 words)
Pieceworkers can claim equal pay under the EA 10. According to the ECJ in the case of Specialarbejderforbundet i Danmark v Dansk Industri ([1995] ... Subscribers only
Length of service (21 words)
A woman does not need to have worked for a particular length of time before claiming equal pay. ... Subscribers only
Time limits (238 words)
A woman can claim equal pay in the employment tribunal at any time while she is in the job, or within six months of leaving the job. The tribunal ... Subscribers only
What can be claimed? (41 words)
Back pay of up to six years can be recovered, plus interest from the halfway point. It is possible for a claim to go back further than six years in ... Subscribers only
Pay transparency and equal pay audits (118 words)
In its Equality Strategy Progress Report, May 2012, the government has said still favours a voluntary strategy for pay transparency, through a ... Subscribers only
The Public Sector Equality Duty (213 words)
The public sector equality duty is in section 149 of the EA 10. Detailed guidance on the duty can be downloaded from the Equality and Human Rights ... Subscribers only
Bringing a discrimination claim (142 words)
Before submitting a claim to the employment tribunal, it is advisable to first raise a written grievance to set out the claim clearly and also to ... Subscribers only
The questionnaire procedure and equal pay questionnaires (262 words)
For more than thirty years, discrimination law has included a “Questionnaire procedure”, allowing individuals to ask questions of the employer ... Subscribers only
Time limits (54 words)
The time limit for all discrimination cases is three months from the date of the discriminatory act. If the individual is subject to continuing ... Subscribers only
Continuing discrimination (304 words)
If a woman claims discriminatory treatment, the fact that she does not suffer this treatment while away from work on maternity leave does not break ... Subscribers only
Extending time to bring a discrimination claim in the employment tribunal (108 words)
An employment tribunal has discretion to extend the time limit for bringing a discrimination claim if it is just and equitable to do so. A tribunal ... Subscribers only
Length of service (24 words)
No service is needed to bring a claim for discrimination under the EA 10. The Act even protects unsuccessful job applicants. ... Subscribers only
Claims against bodies other than employers (36 words)
Claims of discrimination can be taken against bodies other than employers. Partnerships, trade unions, qualifying bodies, vocational training ... Subscribers only
Claims against individual discriminators and harassers (147 words)
A claim under the EA 10 can also be taken against work colleagues who have discriminated against or harassed other ... Subscribers only
Recommendations (160 words)
As well as a power to award compensation, tribunals have a wide power to make recommendations. Recommendations have included requiring a letter to ... Subscribers only
Compensation (724 words)
There is no upper limit for compensation in discrimination claims, and compensation can be claimed under a number of different headings. ... Subscribers only
More information (33 words)
LRD ... Subscribers only
Chapter 7
7. SICK PAY AND SICKNESS ABSENCE (71 words)
An employer must provide employees with details of their sick pay entitlement as part of the written statement of employment particulars within two ... Subscribers only
How much is SSP? (237 words)
Many employers provide an occupational sick pay scheme that is more generous than the statutory sick pay (SSP) scheme. Employees who are not ... Subscribers only
Eligibility for SSP (119 words)
To claim SSP, an employee must be ill for at least four days in a row (including weekends and bank holidays). SSP is only paid for the days the ... Subscribers only
Rules about notifying the employer (81 words)
To claim SSP, the employee must notify the employer. Although an employer can have its own notification procedure as a condition of payment of ... Subscribers only
Claiming SSP (38 words)
Claims for non-payment of SSP can be pursued against the employer as unlawful deductions from wages through the employment tribunal. However, a ... Subscribers only
The Fit Note (125 words)
A revised sick note system was introduced in April 2010, known as the “Statement of Fitness for Work” or “Fit Note”. The Fit Note replaced ... Subscribers only
The purpose of the Fit Note (174 words)
The Fit Note allows the GP, following discussions with the patient, to suggest a return to work based on one of four possible ... Subscribers only
The advice on the Fit Note (106 words)
An employer is not obliged to accept the advice on a Fit Note, but if the employer decides not to follow GP advice (or follows it inadequately), the ... Subscribers only
More information (61 words)
TUC guidance for reps: How to use the new sick note, updated following the introduction of electronic Fit Notes, is available on the TUC website ... Subscribers only
Proposals for a new Health & Work Advisory and Assessment Service (131 words)
In January 2013, the DWP published Fitness for Work: the Government response to Health at Work: an independent review of sickness absence. One of ... Subscribers only
Occupational sick pay (416 words)
An employer may provide an occupational sick pay scheme. This must pay at least the SSP rate. As this is a contractual term, the employer is allowed ... Subscribers only
Occupational pay schemes (573 words)
LRD has many examples of collectively agreed occupational sick pay schemes on its Payline database. ... Subscribers only
Establishing a contractual entitlement to sick pay (195 words)
If there is no written term and the contractual entitlement to sick pay is in dispute, a tribunal can look at what happened in the past and what the ... Subscribers only
Occupational sick pay and pregnancy (154 words)
A woman absent from work while pregnant due to a pregnancy-related illness is not entitled to full pay just because she is pregnant, unless the ... Subscribers only
Sickness and holiday (23 words)
The law on the relationship between holiday entitlement and sickness is set out in Chapter 4: Holidays and sickness absence. ... Subscribers only
Sickness during notice period (73 words)
The law says that an employee off sick during the notice period is entitled to be paid normal full pay during that period, even if they have used up ... Subscribers only
Dismissal due to sickness (899 words)
Long-term or frequent sickness absence can be a fair reason for dismissal. Most commonly, the statutory reason for dismissal will be capability. ... Subscribers only
Disability and sickness absence (218 words)
The dismissal of a disabled member of staff for disability-related absences could amount to disability discrimination unless the employer has first ... Subscribers only
Reasonable adjustments and sickness absence (287 words)
A phased return to work can be a reasonable adjustment (London Borough of Hillingdon v Morgan (UKEAT1493/98/2705). In this case, there was evidence ... Subscribers only
Keeping in touch with absent staff (94 words)
Many sickness absence procedures contain rules for keeping in touch during sickness absence. These rules may require employees to contact their ... Subscribers only
Intermittent absence (228 words)
In cases of intermittent absences due to ill health, the employer may not always need to obtain medical evidence before carrying out a fair dismissal. ... Subscribers only
Dismissal and permanent health insurance (174 words)
Some employers provide permanent healthcare insurance (PHI), which insures against the financial costs of long-term illness and provides a financial ... Subscribers only
Sickness absence and strike action (232 words)
Workers off sick before the start of a strike are not viewed as taking part in it. This is because workers who are off sick have no obligation to ... Subscribers only
Sickness absence and redundancy selection (77 words)
Employers can legitimately use sickness as a method of selecting for redundancies (see Chapter 11: Selection for redundancy). However, reasonable ... Subscribers only
Medical reports (213 words)
The Access to Medical Reports Act 1988 gives employees (and prospective employees) the right to see medical reports prepared by their own GP, or any ... Subscribers only
Pre-employment health checks (58 words)
The position of jobseekers with a record of sickness absence is made slightly easier by a change under the EA 2010 which bans pre-employment ... Subscribers only
Surveillance of employees on sick leave (287 words)
Notwithstanding the Human Rights Act, tribunals are increasingly willing in principle to view secret video footage collected by an employer of a ... Subscribers only
More information (77 words)
LRD ... Subscribers only
Chapter 8
8. RIGHTS TO TIME OFF WORK FOR WORKING PARENTS AND CARERS (117 words)
There have been the following recent changes to the law on time off for working parents and ... Subscribers only
Changes planned for the future (417 words)
The government has announced that it will implement several major changes to the law in this area. Details can be found in Modern Workplaces: ... Subscribers only
Employee Shareholder Status: Maternity leave and flexible working (115 words)
From October 2013, the government intends to introduce a new employment status — Employee Shareholder Status — despite virtually universal ... Subscribers only
Minimum statutory rights to leave (56 words)
The rights set out in this Chapter are minimum statutory rights. In most unionised workplaces, improvements will have been negotiated to these basic ... Subscribers only
Protection from detriment or dismissal (81 words)
It is automatically unfair to dismiss an employee, or to subject them to a detriment (such as withholding a promotion or pay rise) for trying to ... Subscribers only
More information (76 words)
Tribunal fees: Once tribunal fees are introduced — from Summer 2013 — a claim for unfair dismissal or suffering a detriment for exercising a ... Subscribers only
Maternity rights (340 words)
Pregnant employees and qualifying agency workers (see Chapter 2) have the right to paid time off to attend appointments for ante-natal care. ... Subscribers only
Maternity and Adoption leave (125 words)
Statutory maternity or adoption leave both last for up to 52 weeks. Only employees are entitled to this leave. Agency workers and the self-employed ... Subscribers only
Who is eligible for Statutory Maternity Leave? (130 words)
Subject to certain notification rules set out below, all female employees are entitled to 52 weeks’ maternity leave. There is no service ... Subscribers only
Who is eligible for Statutory Adoption Leave? (109 words)
To qualify, a person must ... Subscribers only
Giving notice of intention to take Statutory Maternity Leave (210 words)
The employer must be told of the intention to take statutory maternity leave at least 15 weeks before the start of the week in which the baby is ... Subscribers only
Giving notice of intention to take Statutory Adoption Leave (112 words)
The employer must be told of the intention to take statutory adoption leave within seven days of being matched with a child (or as soon as possible, ... Subscribers only
Statutory Maternity Leave start date (73 words)
A woman can start her statutory maternity leave any time from eleven weeks before the start of the week the baby is due. If she is off work because ... Subscribers only
Statutory Adoption Leave start date (41 words)
Statutory Adoption Leave can start ... Subscribers only
Returning to work early (41 words)
If a woman wants to return to work early from either statutory maternity or adoption leave (i.e. before the end of the full 52 week period), she ... Subscribers only
Sharing Statutory Maternity or Adoption leave. (91 words)
A woman is not obliged to take all her statutory maternity or adoption leave, but where she has given birth, she must take the compulsory maternity ... Subscribers only
Additional Paternity Leave (133 words)
New laws came into force in 2011. These rules allow an eligible father or partner (see below) to take up to 26 weeks’ time off work to care for a ... Subscribers only
Who is eligible for Additional Paternity Leave (APL)? (115 words)
To claim APL you ... Subscribers only
When can APL be taken and for how long? (112 words)
APL can only be taken once the baby is 20 weeks old and must end by the child’s first birthday (or first anniversary of placement for adoption). ... Subscribers only
Notifying intention to take APL (107 words)
To be eligible for APL, an eligible employee must self-certify, by providing a signed notification to the employer (HMRC Form SC7). At least 8 weeks ... Subscribers only
Rights during Statutory Maternity, Adoption and Additional Paternity Leave (109 words)
During statutory maternity, adoption and additional paternity leave, the employment terms of the employee taking the leave are protected, and if ... Subscribers only
Pension contributions (70 words)
Any employer occupational pension contributions must continue to be paid during maternity, paternity or adoption leave, throughout the time when ... Subscribers only
Keeping in touch (128 words)
During the leave, an employer is entitled to take reasonable steps to keep in touch with the absent employee. ... Subscribers only
“Keeping in touch” (KIT) days (105 words)
During maternity, adoption or additional paternity leave, an employee can carry out work or training of up to 10 days for the employer, without ... Subscribers only
Ordinary Paternity leave (OPL) (91 words)
Ordinary paternity leave (OPL) is the right for a woman’s partner to take one or two weeks’ leave around the time of the birth (or adoption). ... Subscribers only
Who qualifies for OPL? (101 words)
To qualify for OPL a person must ... Subscribers only
Notifying intention to claim OPL (93 words)
} The employee must give notice of intention to take OPL (using HMRC Form ... Subscribers only
Holiday entitlement (223 words)
Employees on maternity, adoption, ordinary or additional paternity leave accrue holiday (both statutory and contractual, including any contractual ... Subscribers only
Returning to work (257 words)
An employer cannot refuse to let an employee return to work early (i.e. before the statutory end date of their leave) as long as that employee has ... Subscribers only
Statutory Maternity Pay (99 words)
To qualify for Statutory Maternity Pay (SMP), a woman ... Subscribers only
How much is SMP? (185 words)
SMP is 6 weeks’ pay at 90% of the woman’s average earnings, followed by 33 weeks’ of SMP at a flat rate of £136.78 (2013-14) (or 90% of ... Subscribers only
Maternity Allowance (38 words)
A woman who is not eligible for SMP may be able to claim Maternity Allowance (MA) through her local Jobcentre Plus office. MA is a flat rate of £136. ... Subscribers only
Statutory Adoption Pay (74 words)
To get statutory adoption pay (SAP) an adoptive parent ... Subscribers only
How much is Statutory Adoption Pay? (29 words)
SAP is payable for 39 weeks at a flat rate of £136.78 (2013-14) (or 90% of earnings if they are less than this). ... Subscribers only
Maternity leave and sick pay (116 words)
A woman absent before or after maternity leave with a pregnancy-related illness is entitled to the same contractual rate of sick pay as any male or ... Subscribers only
More information (17 words)
The charity Maternity Action produces useful Fact Sheets about statutory entitlements during pregnancy. See ... Subscribers only
Statutory Paternity Pay (35 words)
Statutory Paternity Pay (SPP) amounts to a maximum of two weeks’ paid leave. Payment is set at £ 136.78 (2013-14) a week, or 90% of earnings if ... Subscribers only
Additional Statutory Paternity Pay (ASPP) (69 words)
An employee taking APL is entitled to Additional Statutory Paternity Pay (ASSP) ... Subscribers only
How much is ASSP? (125 words)
ASSP is paid at the lesser of SMP (£136.78 per week — 2013-14) or 90% of average earnings. ... Subscribers only
Contractual maternity or adoption pay (145 words)
The employment contract may contain more generous terms for payment of contractual maternity or adoption pay, which may have been collectively ... Subscribers only
Must ASSP match any enhanced contractual maternity pay? (82 words)
There has been argument that where an employer pays enhanced maternity pay to women, discrimination laws (including the right to equal pay) mean ... Subscribers only
Minimum statutory entitlements (97 words)
Employers can claim back most (or in the case of small businesses, all) of these statutory payments, through deductions from their national ... Subscribers only
Right to a medical suspension relating to pregnancy and childbirth (182 words)
Where, following a risk assessment, an employer identifies a risk to the health and safety of a new or expectant mother and their unborn child that ... Subscribers only
Breastfeeding at work (235 words)
The Equality Act 2010 states expressly that it is discrimination to treat a woman unfavourably because she is breastfeeding. There is no express ... Subscribers only
Parental leave (310 words)
Working parents who are employees are entitled to unpaid parental leave. The minimum statutory criteria are set out ... Subscribers only
Leave for family emergencies (594 words)
Employees (not agency workers or the self-employed) have the right to reasonable unpaid time off work to deal with family emergencies involving ... Subscribers only
Flexible working (825 words)
An employee with caring responsibilities for a child under the age of 17 (18 if disabled) or an adult has the statutory right to request a flexible ... Subscribers only
More information (31 words)
LRD’s Workplace Report has regular quarterly updates on changes to the law in this area. ... Subscribers only
Chapter 9
9. INDUSTRIAL ACTION (255 words)
The law relating to industrial action covers not just strikes but lockouts, go slows, working to rule, and refusing to cross picket lines, ... Subscribers only
International condemnation (103 words)
The International Labour Organisation has condemned the UK’s industrial action laws as incompatible with ILO Convention 87 on Freedom of ... Subscribers only
European Union Law (380 words)
UK unions increasingly look to the ECHR for support for the right to strike. European Union law, by contrast, is far more restrictive, wherever ... Subscribers only
Union protests over fresh proposals to restrict right to strike (72 words)
The TUC has reacted angrily to proposals in the Crime and Courts Bill 2013 which, if implemented, will prevent 3,000 civil servants working for the ... Subscribers only
The immunities (45 words)
All forms of industrial action are in fundamental breach of the contract of employment but section 219 of the Trade Union and Labour Relations ... Subscribers only
Trade dispute (725 words)
TULRCA says that an act done “in contemplation or furtherance of a trade dispute” is not actionable in the courts just because it makes someone ... Subscribers only
Workplace reps (198 words)
Workplace representatives can claim the section 219 immunities relating to strikes. They are protected if they induce someone to break or interfere ... Subscribers only
“Official” or “unofficial” action (524 words)
The law describes a strike or any other kind of industrial action as official where the employee is a member of a trade union and the union has ... Subscribers only
Balloting (1,914 words)
Sections 226-235 of TULRCA remove the immunities, even where the action otherwise is not unlawful, where there has not been a ballot which complies ... Subscribers only
Requirements to notify employers (62 words)
To comply with the legislation, a union must also give notice to employers at four key stages as set out below. These are contained in section 226A ... Subscribers only
Notification stages (476 words)
Stage 1 — when taking a decision to ballot for industrial action, a union must first notify the employer in writing, at least seven days before ... Subscribers only
Picketing (611 words)
Under section 220 of TULRCA, workers “in contemplation or furtherance of a trade dispute” can lawfully picket at or near their place of work, ... Subscribers only
Supporting other workers (116 words)
Solidarity has always played an important role for trade unionists, but has been undermined by legislation introduced since 1980 and still in force ... Subscribers only
How the law aids employers (54 words)
Not all employers will resort to the courts and the success or failure of a dispute can depend just as much on the level of workplace union ... Subscribers only
Injunctions (373 words)
The injunction (interdict in Scotland) is the most popular legal remedy sought by employers. An injunction is a court order to do or to refrain from ... Subscribers only
Dismissal (156 words)
Section 238A of TULRCA gives employees protection from dismissal during the first 12 weeks of any lawful, balloted, official industrial action. ... Subscribers only
No protection from action short of dismissal (75 words)
Although the law provides protection from dismissal during the first 12 weeks of lawful industrial action, it provides no protection for striking ... Subscribers only
Deducting pay (563 words)
Employers are generally entitled to deduct pay for any days when a worker is on strike, as a worker has no general right to be paid if they do not ... Subscribers only
Lockouts (219 words)
Employers may try to anticipate a dispute or bring pressure to bear in a dispute by locking out workers. A lockout is defined in section 235(4) of ... Subscribers only
Criminal law (321 words)
There are a few instances where the criminal law can be used against workers taking industrial action. In these circumstances the police may ... Subscribers only
State benefits for strikers (221 words)
Although strikers are mostly excluded from claiming state benefits, they should be able to continue to receive Working Tax Credit and Child Tax ... Subscribers only
More information (54 words)
Taking industrial action — a legal guide (£5.05) www.lrdpublications.org.uk/publications.php?pub=BK&iss=1496 ... Subscribers only
Chapter 10
10. DISMISSAL (71 words)
The law of unfair dismissal has been at the centre of the government’s attack on employment rights. This is primarily because unlike many of the ... Subscribers only
Planned changes to unfair dismissal law (304 words)
A number of important changes are expected to unfair dismissal ... Subscribers only
Employee-Shareholder Status (160 words)
In October 2013, the government plans to introduce a new “Employee Shareholder Status”, under its Growth and Infrastructure Bill. In return for ... Subscribers only
Unfair dismissal law — some key points to note (102 words)
} The right to claim unfair dismissal is only available to employees (see Chapter 2). ... Subscribers only
What is a dismissal? (153 words)
A dismissal takes place ... Subscribers only
Resignation (264 words)
There is no dismissal where the employee ends the contract by exercising free choice and resigning voluntarily. Employees are free to end the ... Subscribers only
Can I take back my notice? (219 words)
An employee who has handed in their notice cannot withdraw it without the employer’s consent. There is a very rare exception for cases known as ... Subscribers only
Employees cannot contract out of unfair dismissal protection (166 words)
Because of the unequal bargaining power between the parties and the risk of employees being forced to give up their rights, employer and employee ... Subscribers only
Termination with/without notice (634 words)
Under section 86 of the ERA 96, both employee and employer have a statutory right to minimum notice if the contract is terminated. ... Subscribers only
Notice pay during sickness absence (66 words)
An employee absent on sick leave during any part of the notice period is entitled to full weekly pay, even if all contractual sick pay has been used ... Subscribers only
Non-renewal of a fixed-term contract (52 words)
When a temporary (fixed-term) contract comes to an end, this is a dismissal and the employee can claim unfair dismissal, as long as the other ... Subscribers only
Constructive dismissal (157 words)
A constructive dismissal takes place where an employee resigns in circumstances where the employer’s behaviour amounts to a breach of contract so ... Subscribers only
What is a fundamental breach of the contract? (537 words)
There will be a fundamental breach of the contract entitling the employee to resign and claim constructive dismissal when the employer has broken a ... Subscribers only
The effect of delay (1,050 words)
Even if there has been a fundamental breach of the contract, an employee can lose the right to claim constructive dismissal by affirming the contract. ... Subscribers only
Can an employer correct a serious breach of contract by apologising? (171 words)
Yes, sometimes, as is shown by the following ... Subscribers only
Grievances and the Acas Code of Practice (303 words)
In 2009, Acas issued a revised Code of Practice on discipline and grievances, along with guidance on dealing with discipline and grievances at work. ... Subscribers only
Unfair dismissal (155 words)
Unless a dismissal is for an automatically unfair reason, it must meet the following statutory “fairness” test, which is found in section 98 of ... Subscribers only
Was the dismissal reasonable in all the circumstances? (444 words)
Establishing a “fair reason” is only the first step to any fair dismissal. The next step is for the tribunal to be satisfied that the dismissal ... Subscribers only
Right to written reasons for dismissal (157 words)
Under section 92 of the ERA 96, employees with at least one year’s continuous service (two years if they started work on or after 6 April 2012) ... Subscribers only
Fair reasons for dismissal (186 words)
A “capability” dismissal relates to “skill, aptitude, health or any other physical or mental quality”. An employee can be fairly dismissed ... Subscribers only
Conduct (439 words)
A conduct dismissal is based on something the employee has done or failed to do. It is more accurately described as misconduct dismissal. Dismissals ... Subscribers only
When will different treatment make a dismissal unfair? (186 words)
An employer should always take into account how it treats other employees, but inconsistent treatment of others for the same offence is only likely ... Subscribers only
Gross misconduct (607 words)
Employers have a right to dismiss without warning for offences amounting to gross misconduct. A dismissal for gross misconduct is also known as a ... Subscribers only
Disciplinary procedures (1,402 words)
Since 2009, disciplinary procedures must meet at least the minimum requirements set out in the revised Acas Code of Practice (the Code). As well as ... Subscribers only
Disciplinary warnings (90 words)
Acas recommend that most issues are best approached informally before using a formal procedure. ... Subscribers only
Dismissal following formal warnings (867 words)
It is very difficult to win an unfair dismissal claim in the tribunal where the dismissal was triggered by a live formal warning, whether the last ... Subscribers only
Lapsed Warnings (373 words)
The Acas guidance states that except in exceptional agreed circumstances, any disciplinary action taken should be disregarded for disciplinary ... Subscribers only
Retirement (176 words)
Compulsory or forced retirement — whether under a contract term or otherwise — is a dismissal. Compulsory retirement used to be a “fair ... Subscribers only
Redundancy (55 words)
Redundancy can be a fair reason for dismissal. However, there are several ways in which a redundancy dismissal can be unfair. These include unfair ... Subscribers only
Complying with a legal duty or restriction (154 words)
It is a fair reason to dismiss an employee if continuing the employment would contravene a legal duty or restriction: in other words, where ... Subscribers only
Immigration and dismissal (120 words)
Since 2004, employers have been under a statutory obligation to carry out checks before the start of the employment, to ensure that all their ... Subscribers only
Some other substantial reason (129 words)
Section 98(1) of the ERA 96 also contains a “catch-all” provision, which states that it is fair to dismiss an employee for “some other ... Subscribers only
Refusing to agree to changes to terms and conditions (922 words)
The economic downturn has seen a dramatic increase in the number of employers forcing employees to agree to downgraded terms and conditions by a ... Subscribers only
The right to be accompanied (549 words)
Under section 10 of the Employment Relations Act 1999 (ERA 99), as amended by the ERA 2004, a worker required or invited by an employer to attend a ... Subscribers only
Proposals to prevent employees relying on “protected discussions” pre-dismissal (180 words)
From Summer 2013, the law will change to make it easier for employers to sack employees by introducing the concept of the “protected ... Subscribers only
Unfair dismissal and the Human Rights Act (55 words)
The Human Rights Act (HRA) binds all public bodies (including public sector employers), but not private employers or individuals. However, ... Subscribers only
Legal representation in disciplinaries (626 words)
In recent years there has been much debate as to whether the HRA is triggered by internal disciplinary hearings when a public body, such as an NHS ... Subscribers only
Human rights and the “band of reasonable responses” test (311 words)
In 2012, a challenge was made to the “band of reasonable responses” test in unfair dismissal based on arguments that relied on the HRA. This ... Subscribers only
The Human Rights Act and surveillance (271 words)
In McGowan v Scottish Water ([2005] IRLR 167), the EAT confirmed that the human right to respect for private and family life (Article 8) is engaged ... Subscribers only
Disciplinary records (130 words)
Employees are entitled to a copy of the notes of any disciplinary, dismissal or grievance meeting, and of any supporting documentation relied on to ... Subscribers only
Qualifying for unfair dismissal rights (167 words)
To bring a claim for unfair dismissal, an individual ... Subscribers only
The Effective Date of Termination (448 words)
The effective date of termination (EDT) is the date the employment contract comes to an end. Employees must understand clearly when the EDT is in ... Subscribers only
Extending time to bring an unfair dismissal claim (844 words)
A claim for unfair dismissal must be brought within three months of the EDT (see Qualifying for unfair dismissal rights, above). The tribunal has a ... Subscribers only
Acas Pre-Claim Conciliation (95 words)
From April 2014, anyone considering a tribunal claim will be required to contact Acas first to attempt early conciliation of the dispute. Proposals ... Subscribers only
What is continuous employment? (1,171 words)
A special set of statutory rules define what amounts to continuous employment, and employees with broken or irregular service with the same or an ... Subscribers only
Dismissal while on strike (505 words)
Employees are automatically unfairly dismissed if the reason or main reason for dismissal is that they took part in official industrial action, and ... Subscribers only
Automatically unfair dismissals (135 words)
Dismissals for certain reasons are automatically unfair. If a dismissal is automatically unfair, the employer is not allowed to argue that dismissal ... Subscribers only
Pregnancy and parental rights (163 words)
Dismissing a woman because she is pregnant or on maternity leave, or for any reason connected with her pregnancy, is contrary to both the Equality ... Subscribers only
Business transfers (72 words)
It is automatically unfair to dismiss an employee where the sole or main reason for the dismissal is the transfer itself or a reason connected with ... Subscribers only
Trade union membership (275 words)
Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects individuals dismissed because they are, or propose to ... Subscribers only
Blacklisting (65 words)
It is automatically unfair to dismiss an employee where the main reason for dismissal relates to the use of information from a blacklist (i.e. a ... Subscribers only
Representation rights (25 words)
Employees are protected from dismissal for exercising their right to be accompanied or to act as a companion in disciplinary and grievance hearings. ... Subscribers only
Protected industrial action (21 words)
During the twelve-week period of protected industrial action, employers are barred from dismissing employees taking official industrial action. ... Subscribers only
Enforcing a statutory right (161 words)
It is automatically unfair to dismiss someone for attempting to enforce a relevant statutory right, such as a claim for holiday pay (section 104, ... Subscribers only
Part-time or fixed-term employees (23 words)
It is unlawful to dismiss a part-time or fixed-term employee for asserting statutory rights as part-time or fixed-term employees. ... Subscribers only
Health and safety reasons (321 words)
Under sections 44 and 100, ERA 96, a person must not suffer a detriment, be dismissed or made redundant wholly or mainly because ... Subscribers only
Whistleblowing (386 words)
Under the Public Interest Disclosure Act 1998 (PIDA), employees and workers who disclose information about alleged wrong doing at work ... Subscribers only
Victimisation of whistleblowers by their co-workers (156 words)
The Enterprise and Regulatory Reform Act 2013 is to introduce an important change to whistleblowing law, extending protection to whistleblowers who ... Subscribers only
Refusal to work on Sundays (22 words)
Dismissal of a protected shop or betting worker for refusing to work on Sundays is automatically unfair. ... Subscribers only
Employee representatives and pension fund trustees (53 words)
It is automatically unfair to dismiss an employee for acting as an employee representative (or candidate), a member of a European Works Council or ... Subscribers only
Pension auto-enrolment (36 words)
It is automatically unfair under s.104D of the Employment Rights Act 1996 to dismiss an employee for a reason relating to pension auto-enrolment, ... Subscribers only
Minimum wage and working time (26 words)
It is automatically unfair to dismiss someone for lawfully pursuing their statutory rights to pay, hours or holidays (see Chapter 4). ... Subscribers only
Union recognition (18 words)
It is automatically unfair to dismiss an employee for seeking trade union recognition (see Chapter 5). ... Subscribers only
Dismissal for political belief or affiliation (391 words)
From 25 June 2013, no service is needed for a claim for unfair dismissal where the reason (or if more than one, the principal reason) for the ... Subscribers only
Successful claims (74 words)
An employee bringing a claim for unfair dismissal is entitled to ask for his or her job back. However, less than one per cent of successful ... Subscribers only
Reinstatement or re-engagement (786 words)
When the tribunal system was first devised, reinstatement and re-engagement orders were supposed to be the primary remedy. However, in practice, ... Subscribers only
Compensation (1,247 words)
Compensation has two main elements: a basic award and a compensatory award. At an early stage of any tribunal claim, the claimant will need to ... Subscribers only
Mitigating losses (1,021 words)
Employees have an important duty to mitigate (lessen) their losses, which they must do principally by looking for alternative work. ... Subscribers only
Contributory fault (469 words)
If the tribunal thinks the employee’s conduct contributed to the unfair dismissal, it can reduce the compensatory award to reflect this (section 123 ... Subscribers only
The statutory cap (365 words)
The statutory cap (currently £74,200) is to the compensatory award only. Applying the statutory cap is the last step in the calculation, after ... Subscribers only
Government plans to cut the size of the compensatory award (102 words)
From Summer 2013, the compensatory award in unfair dismissal claims is to be capped at a maximum of 12 months’ pay or the existing cap (£74,200), ... Subscribers only
Wrongful dismissal (266 words)
Employees who cannot claim unfair dismissal (for example, because they have insufficient service) may be able to claim wrongful dismissal or in rare ... Subscribers only
More information (39 words)
LRD ... Subscribers only
Chapter 11
11. REDUNDANCY (666 words)
Not every situation in which employees lose their jobs through no fault of their own is covered by redundancy law and confusingly, “redundancy” ... Subscribers only
Reorganisation or change in duties (425 words)
Whether a reorganisation or change of duties results in a redundancy depends on the kind of work an employee is required to do before and after the ... Subscribers only
Mobility clauses (322 words)
Section 139 ERA 96 says there can be a redundancy where the employer’s need for employees to carry out work in “the place where they are ... Subscribers only
More information (13 words)
LRD Booklet: Redundancy law — a practical guide (£10.40) - www.lrdpublications.org.uk/publications.php?pub=BK&iss=1581 ... Subscribers only
Redundancy consultation (158 words)
An employer has a legal obligation to consult over collective redundancies if it proposes to dismiss as redundant 20 or more employees at one ... Subscribers only
Important changes to the law on collective consultation (251 words)
On 6 April 2013, the law on collective consultation changed as ... Subscribers only
What does “establishment” mean? (928 words)
To calculate whether the proposed number of redundancies is 20 or more, only employees in that establishment can be included. According to the ECJ, ... Subscribers only
What about the ending of fixed term contracts? (114 words)
Despite union opposition, especially in the higher education sector, where very extensive use is made of fixed term contract arrangements, the ... Subscribers only
The mechanics of collective consultation (61 words)
Where there is a proposal to dismiss 20 or more employees for redundancy, the employer must consult the appropriate representatives of any employees ... Subscribers only
Who should be consulted? (365 words)
Consultation must be with all recognised unions, even if members of one union will not be affected (Governing Body NI Hotel and Catering College v ... Subscribers only
Rights to time off, facilities and training (124 words)
Employees are entitled to reasonable time off to act as reps or candidates, and union reps are entitled to reasonable time off for certified ... Subscribers only
When must consultation begin? (778 words)
Consultation must take place “in good time”. For proposals to dismiss as redundant 100 or more employees at one establishment over a period of ... Subscribers only
Can an employer give notice of redundancy before consultation is completed? (148 words)
No. An employer must not give notice of redundancy before the consultation process has been ... Subscribers only
The employer’s obligation to provide information to reps (356 words)
The employer is required to provide reps with “adequate information” for consultation. The specific categories of statutory information are ... Subscribers only
UNISON victories enforcing AWR disclosure obligations (274 words)
This year, public services union UNISON won an important victory against Barnet council to enforce the new obligation to provide information under ... Subscribers only
The employer’s obligation to notify BIS (83 words)
The employer must notify the Secretary of State of the Department for Business, Innovation and Skills (BIS) of all proposed redundancies of 20 or ... Subscribers only
The subject matter of collective consultation (452 words)
Under section 188(2) of TULRCA 92, the employer must consult about ways ... Subscribers only
New Acas guidance on consultation (211 words)
The Acas guidance: How to manage collective redundancies, April 2013, includes a sample redundancy procedure which suggests the following areas for ... Subscribers only
Remedies for failure to consult (120 words)
If an employer does not consult adequately or at all with reps, a complaint can be made to the employment tribunal. The complaint must be brought by ... Subscribers only
Calculating a protective award (318 words)
The purpose of a protective award is not to compensate employees for the loss they have suffered, but to punish the employer for failing to consult ... Subscribers only
What is meant by “special circumstances”? (482 words)
A tribunal should make a protective award unless the employer can point to “special circumstances” making it not reasonably practicable to ... Subscribers only
Selection for redundancy (196 words)
In many workplaces where unions operate, there will be an agreed procedure for redundancy selection. A selection procedure is rarely contractual, so ... Subscribers only
Developments in redundancy selection (815 words)
Recent cases suggest that tribunals are likely to take a different approach to procedural fairness in redundancy selection depending on whether the ... Subscribers only
Choosing the selection pool (374 words)
An employer has wide discretion when choosing the selection pool, and a challenge to the fairness of a dismissal on this basis is likely to be very ... Subscribers only
Choosing selection criteria (53 words)
An employer has wide discretion in its choice of selection criteria, and a tribunal will only interfere with this choice if it is one that no ... Subscribers only
Redundancy selection and discrimination (279 words)
Selection criteria must not be discriminatory. If either the criteria or the process discriminates unlawfully on the grounds of sex or pregnancy, ... Subscribers only
Redundancy selection criteria and age discrimination (208 words)
A selection procedure that discriminates on grounds of age can be objectively justified, as long as it is a proportionate means of achieving a ... Subscribers only
Last in, first out (233 words)
Many agreed redundancy procedures use the criterion of last in, first out (LIFO). LIFO protects employees with longer service from being selected ... Subscribers only
Redundancy selection and trade union activities (177 words)
It is unlawful to select someone for redundancy on grounds of their trade union membership or activities (section 153, Trade Union and Labour ... Subscribers only
Redundancy selection and sex discrimination (539 words)
It is automatically unfair to select for redundancy on the basis that a woman is pregnant or on maternity leave (section 99 ERA 96, Brown v Stockton ... Subscribers only
Redundancy selection and part-time or fixed term employees (40 words)
It is unlawful to select employees for redundancy because they are part-time workers or fixed term employees, unless the employer can show this can ... Subscribers only
Voluntary redundancy (183 words)
An employer may ask for volunteers first and would not need to apply the selection procedure to them. However, there is no obligation to ask for ... Subscribers only
Individual consultation (469 words)
An employer who has provisionally selected an employee for redundancy must write to that employee warning of the risk of redundancy and inviting ... Subscribers only
Alternative work (967 words)
An employer should give employees at risk of redundancy the chance to apply for suitable alternative work if available including, where appropriate, ... Subscribers only
Offers of alternative employment and disabled employees (368 words)
There are a number of cases illustrating how the duty to make reasonable adjustments can strengthen the position of a disabled employee whose role ... Subscribers only
Women made redundant during maternity leave (350 words)
The obligation to look for alternative employment is much stricter for women made redundant when pregnant or on maternity leave. Regulation 10 of ... Subscribers only
The statutory trial period (225 words)
Employees have the right to a statutory trial period of four weeks in the new job. These four weeks are defined as calendar, not working weeks ... Subscribers only
Looking for work (109 words)
While under notice of redundancy, employees have the right to reasonable time off with pay during working hours to look for alternative work, ... Subscribers only
Unfair dismissal and redundancy (384 words)
There are circumstances in which redundancy is unfair and the employee can bring a claim for unfair dismissal. ... Subscribers only
Challenging redundancy dismissals (420 words)
It is very difficult to challenge the scores awarded by an employer in a redundancy selection programme. The tribunal will never engage in close ... Subscribers only
Qualifying for redundancy rights (65 words)
To qualify for statutory redundancy pay and time off to look for work, an employee must have been continuously employed for two years by the ... Subscribers only
Crown employees (366 words)
Crown employees are not entitled to statutory redundancy pay or time off, but civil servants are entitled to better than statutory redundancy under ... Subscribers only
Redundancy payments (350 words)
Statutory redundancy pay is calculated using a statutory formula based on age and length of service, which awards a number of “weeks’ pay”. ... Subscribers only
Employee Shareholder Status (58 words)
From October 2013, the government plans to introduce a new ”Employee-Shareholder” status, which will involve employees giving up a number of ... Subscribers only
Establishing a contractual right to a redundancy payment (1,109 words)
Unless an enhanced redundancy scheme is expressly stated to be contractual, it is likely to be difficult to establish a contractual entitlement. In ... Subscribers only
Fixed term contracts and redundancy payments (53 words)
Employees on a series of fixed-term contracts may be entitled to redundancy pay at the expiry of a contract (Pfaffinger v City of Liverpool ... Subscribers only
Leaving job before redundancy notice is issued (154 words)
Employees lose the right to statutory redundancy pay if they leave work before the redundancy notice is issued (Secretary of State for Employment v ... Subscribers only
Redundancies in local government (107 words)
For local government employees, there is a separate statutory scheme, set out in the Local Government (Early Termination of Employment) ... Subscribers only
Redundancy payments and tax (54 words)
Redundancy pay (both statutory and contractual) is tax free up to £30,000. However, employees and reps must be cautious because “emoluments” ... Subscribers only
Redundancy payments and insolvency (39 words)
If the employer cannot pay statutory redundancy compensation because of insolvency, it becomes payable, under section 182 of the ERA 96, by the ... Subscribers only
State benefits (24 words)
Workers who have lost work either through unfair dismissal or redundancy may be entitled to Jobseeker’s Allowance or Employment and Support ... Subscribers only
General guidance (97 words)
New Acas guidance: How to handle collective redundancies, was published in April 2013 and is available to download from the Acas website. ... Subscribers only
Chapter 12
12. BUSINESS TRANSFERS AND CONTRACTING OUT — TUPE (282 words)
The aim of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) regulations is to protect the employment terms and ... Subscribers only
Some key facts about TUPE (409 words)
} TUPE protects only employees (see Chapter 2), not agency workers or the self-employed. ... Subscribers only
Government attacks on TUPE (203 words)
The government is hostile to TUPE, which it views as standing in the way of its plans to privatise public services as a “barrier to reducing the ... Subscribers only
Relevant transfers (84 words)
Since 2006, there have been two types of “relevant transfer”. These ... Subscribers only
Transfer of an economic entity that retains its identity (410 words)
The first type of transfer is a transfer of an economic entity which retains its identity (regulation 3(1)(a) of TUPE). An “economic entity” is ... Subscribers only
Franchises, distributorships and leases (50 words)
TUPE can apply to changes to franchise arrangements and distributorships, and to the assignment of commercial leases (LOM Management Ltd v Sweeney ... Subscribers only
The service provision change regulations (184 words)
The regulations governing service provision change were introduced into TUPE in 2006. These changes were made because of evidence that some ... Subscribers only
Government proposal to repeal the service provision change regulations (175 words)
The majority of respondents to the government’s Call for Evidence opposed the government’s proposal to abolish these regulations. Unions oppose ... Subscribers only
Core requirements of a service provision change (113 words)
Under regulation 3(1) (b) of TUPE, a service provision change ... Subscribers only
Activities must stay fundamentally the same after transfer (985 words)
Case law has established an extra test for a service provision change, which was not foreseen when the regulations were first drafted. There can ... Subscribers only
Service provision fragmentation (492 words)
TUPE can apply when a service is re-tendered among several new providers instead of just one. Transferring employees should be matched up to each ... Subscribers only
Is there an organised grouping of employees? (635 words)
There will only be a service provision change under TUPE if, immediately before the change in provider, there was an organised grouping of employees ... Subscribers only
Statutory exceptions (413 words)
There are two specific circumstances in which TUPE will not apply to the transfer of services. These ... Subscribers only
Change in identity of client (77 words)
There can be no service provision change where there is a change in the identity of the client for whom the services are provided. (Hunter v ... Subscribers only
Who transfers? (1,262 words)
The next difficult question in the context of TUPE is — when the business transfers, or the service is moved from one provider to another — who ... Subscribers only
Objecting to the transfer (101 words)
The law allows employees to object to a transfer before it takes place, even if they have no good reason for objecting. This is because the law says ... Subscribers only
Transfer causing substantial detrimental change (466 words)
The situation is different if the transfer results in a substantial worsening in your working conditions. Under regulation 4(9) of TUPE, where a ... Subscribers only
Government consultation: Proposals to change regulation 4(9) of TUPE (162 words)
The government is unhappy with several aspects of regulation 4(9) ... Subscribers only
Consultation and collective rights under TUPE (148 words)
There are rights to information and collective consultation under TUPE. These are found in regulations 13 and 14. ... Subscribers only
Government proposal: TUPE consultation at micro-businesses: (47 words)
The government wants to allow employers of ten or fewer employees to consult directly with their employees on TUPE unless there is already a ... Subscribers only
Who has the right to be informed and consulted and when? (530 words)
All employees who could be affected by a change of employer have the right to be informed in advance of what is happening. The duty to inform arises ... Subscribers only
Proposed changes to the law on pre-transfer consultation: (78 words)
The government wants to allow (but not require) incoming employers (transferees) to consult with the transferor’s workforce before the transfer ... Subscribers only
What information must be provided to reps? (228 words)
Employers have a duty to inform their employee representatives ... Subscribers only
Disclosure of information under TUPE and Data Protection (96 words)
HR departments sometimes express concerns about the Data Protection Act (DPA) in the context of TUPE. However, the DPA does not prevent HR supplying ... Subscribers only
When must the information be provided to reps? (310 words)
This information must be provided long enough before the transfer to allow effective consultation to take place. If employers choose to engage in ... Subscribers only
What if the employer misinterprets the effect of TUPE? (177 words)
The employer’s duty is to consult on the position as it genuinely believes it to be. The employer does not promise that its interpretation of TUPE ... Subscribers only
Enforcing the obligation to inform and consult under TUPE (215 words)
If the employer fails to inform or consult reps (or individual employees if there is no rep) a complaint can be made to the employment tribunal. ... Subscribers only
The “special circumstances” defence to a failure to consult (77 words)
Under the TUPE regulations, an employer who fails to consult adequately may be able to rely on special circumstances that make it not reasonably ... Subscribers only
More information (42 words)
From Summer 2013, a claim for a protective award will be classified as a Type B Claim, attracting an issue fee of £250 and a hearing fee of £950. ... Subscribers only
Employee liability information (74 words)
The TUPE 2006 regulations introduced an obligation on the transferor to provide the transferee with specific information about the employees to be ... Subscribers only
Government proposal: Employee liability information (115 words)
The government proposes to repeal the requirement to provide specified employee liability information. The government suggests the 14-day timeframe ... Subscribers only
Transfers within public administration (164 words)
A reorganisation within a public administration or the transfer of administrative functions between public bodies is not a relevant transfer for the ... Subscribers only
Withdrawal of the two-tier code (263 words)
One of the earliest acts of the coalition government was to scrap the “two tier code”. The central government-level code (the Code of Practice ... Subscribers only
The effect of TUPE on terms and conditions (231 words)
A TUPE transfer treats an employee’s existing contract of employment and all its terms (excluding pension rights) as if it had been made with the ... Subscribers only
TUPE and pensions (562 words)
Any provisions relating to old age, invalidity or survivors’ benefits under an occupational pension scheme are specifically excluded from TUPE by ... Subscribers only
TUPE and pensions auto-enrolment (94 words)
In October 2012, a radical change to pensions law took place with the introduction of auto-enrolment (See Chapter 4: Right to Pay and Conditions), ... Subscribers only
Fair deal for pensions (291 words)
In the public sector, pensions are subject to a non-statutory code known as the Fair Deal for Pensions. This says that a new external employer must ... Subscribers only
TUPE and collectively agreed terms (456 words)
Collective agreements made by a recognised union with the old employer transfer to the new employer under regulation 5. They are treated as if they ... Subscribers only
TUPE and trade union recognition (29 words)
Under regulation 6, trade union recognition transfers to the new employer as long as the group of employees who transfer retain a distinct identity. ... Subscribers only
Resisting changes to contract terms after a transfer (431 words)
Under regulation 4 of the TUPE regulations, changes to an employee’s terms and conditions as a result of a TUPE transfer are void (unenforceable), ... Subscribers only
How long are terms protected? (562 words)
There is currently no time limit to the right to maintain terms and conditions under TUPE. An employee who has a contractual term that has ... Subscribers only
Government proposals for TUPE and collective agreements (250 words)
In a proposal described by public services union UNISON as “illegal, impractical and unworkable”, the government suggests limiting the period ... Subscribers only
Changes for a reason unconnected to the transfer (170 words)
Contractual variations that are unconnected to the transfer are allowed under TUPE, although they must be agreed, as is the case in any non-transfer ... Subscribers only
Changes to non-contractual working practices (79 words)
TUPE only gives transferred employees the same rights as they had against the original employer — not better rights. For example, a discretionary ... Subscribers only
Changes for an economic, technical or organisational reason (969 words)
Changes can be agreed for a reason connected with the transfer if they are for an economic, technical or organisational reason entailing changes in ... Subscribers only
TUPE Consultation: Changing contract terms (156 words)
The government is proposing significant changes to make it easier for employers to change terms and conditions after a transfer. The proposals under ... Subscribers only
Protection against unfair dismissal and TUPE (364 words)
Under regulation 7 of TUPE, neither the old employer (transferor) nor the new employer (transferee) may fairly dismiss an employee ... Subscribers only
Service requirement for a claim for unfair dismissal based on TUPE (40 words)
Employees wanting to bring a claim for automatically unfair dismissal under TUPE must have at least two years’ service. This increased from one ... Subscribers only
What are economic, technical or organisational reasons for dismissal? (165 words)
Some illustrations of economic, technical or organisational (ETO) reasons for dismissal ... Subscribers only
Government proposals to make redundancies easier (148 words)
The government is consulting on a change to the TUPE regulations to make it possible for transferors to carry out redundancies before the transfer, ... Subscribers only
How long does TUPE protection against dismissal last following a transfer? (67 words)
There is no time limit for protection against dismissal under TUPE. However, the more time that passes, the more difficult it will be to demonstrate ... Subscribers only
What if the new employer offers self-employed terms to the new workforce? (223 words)
An employee who is automatically unfairly dismissed is not in breach of the duty to mitigate his or her losses by turning down an offer to work on ... Subscribers only
Who should the claim be brought against? (99 words)
A claim should usually be brought against the transferee (the new employer) even if the employee does not transfer. This is because liability for ... Subscribers only
What is the deadline for any claim? (62 words)
The deadline for a claim to the Employment Tribunal for unfair dismissal is three months from the date of dismissal. Extensions of time are rarely ... Subscribers only
TUPE and Insolvency (179 words)
Regulations 8 and 9 of the TUPE regulations introduced a new insolvency regime intended to encourage the rescue of failing businesses to safeguard ... Subscribers only
Employee debts in an insolvent liquidation (134 words)
Employees caught up in an insolvent liquidation can claim outstanding wages from the appointed insolvency practitioner. Some debts, including ... Subscribers only
Transfer of business as going concern by insolvency practitioner (249 words)
Where an insolvency practitioner transfers a business as a going concern, TUPE transfers the employment contracts to the new employer, but special ... Subscribers only
Administrations (136 words)
It is now settled law that TUPE applies to transfer employment contracts and employment liabilities to the new employer in all insolvent ... Subscribers only
More information (43 words)
See the LRD Booklet TUPE — a guide for trade unionists (£6.65) ... Subscribers only
Further information
Further information (429 words)
Copies of relevant statutes can be obtained online at: www.legislation.gov.uk. In Northern Ireland, legislation is available online from the Labour ... Subscribers only