Employment Law Made Easy

Everything an employer needs to know about the latest employment law regulations and what this means for their business and staff. In one easy-read book.

Employment Law Made Easy does exactly what it says. It makes Employment Law easy to understand, to put into practice and to apply to your business. Quickly, and without any fuss. So you can get on with your business.

We usually only think of employment law when it is too late. And we’re in the middle of a rather messy disciplinary situation… Or we’ve placed a recruitment ad but vaguely remember some age discrimination legislation…

But Employment Law is something we all work under in business and it’s so easy to get up to speed.

Employment Law Made Easy will answer all your questions on the latest employment law regulations and how it affects:

• your recruitment
• your obligations as an employer
• your employees' obligations to you
• your employees with families
• discrimination at your workplace
• terminating employment and the disciplinary process for your staff

Few legal regulations change as rapidly as employment law.

This latest edition covers the main changes that have come into effect since the introduction of the Equality Act in October 2010, regarding discrimination in the workplace and equal pay. 

Our Employment Law Made Easy guide also provides a link to our Updates Service so you can catch up with any changes to employment law since the book was printed.

Recent developments in employees’ rights have radically altered the legal relationship between employer and employee. Find out what this means for you and your staff.

Employment Law Made Easy gives you an everyman perspective on employment law from an insider expert.

In today’s cultural climate it's increasingly popular to seek legal remedies for violations of employment law. It's vital that every business understands what employment law means for them, and their staff. If you want to learn what simple best practice steps you can take to avoid the courts and adhere to employment law, you should read Employment Law Made Easy… and then you can simply get on with business!

About the Author

Melanie Slocombe is a solicitor at Steen & Co, specialists in employment law. She is an experienced employment tribunal advocate, and has also brought and defended proceedings in the High Court and in the Court of Appeal. Melanie has advised on corporate transactions and on pan-European human resource issues. Her clients have ranged from large plc organisations to individual senior executives. Melanie is Lawpack's leading employment law author. Her knowledge and expertise, communicated in a clear and concise style, have produced several bestselling employment law titles including our Employment Contracts Kit.

Employment Contracts Links:

• Ready-Made Employment Contracts, Letters & Forms
• DIY Employment Contracts Kit

More Business Books from the 'Made Easy' Range:

• How to Understand Accounts Made Easy
• Running Your Own Business Made Easy
• Book-Keeping Made Easy
• Business Letters & Emails Made Easy

Employment Law Made Easy Contents

1st February 2011 - Employment Tribunal compensation limits will increase

Unfair dismissal

Redundancy pay     

£12,000     

1st October 2010 - Replacement of Chapter 4 of Employment Law Made Easy

The Equality Act is the single biggest piece of discrimination legislation created in this country and was introduced on 1st October 2010.  This update covers the main changes that have come into effect. This update replaces the whole of Chapter 4 in Employment Law Made Easy.

The Equality Act 2010

The Equality Act 2010 came into force on 1st October 2010, consolidating and replacing previous legislation on discrimination. In most respects the law remains unchanged, and the main principles of discrimination remain the same. However, the Equality Act also introduces some new aspects of equality law, which are set out below.

Discrimination is forbidden at every stage of employment (i.e. advertising vacancies, engagement of employees, promotion, training, benefits, dismissal and retirement). Protection covers more than just employees, and the term ‘employee’ should be widely interpreted to include the self-employed and those engaged under a contract of service or apprenticeship; it protects individuals when the employment relationship has come to an end provided the discrimination arises out of, or is closely connected to the employment relationship. Individuals who work wholly or mainly outside Great Britain are not protected by the law on discrimination.

An individual who complains of discrimination can pursue legal action in an employment tribunal against their employer and no qualifying period of service is necessary in order to bring such a claim. Discrimination claims are not subject to any maximum award and are therefore popular claims to bring.

An employer is liable for anything done by its employees in the course of their employment, whether or not it was done with the employer’s knowledge or approval. However, it is a defence if the employer can prove that it took such steps as were practicable to prevent an employee from doing a certain act. If the employer wishes to rely on this defence, it must be shown that positive steps have been taken to address the possibility of discrimination occurring in the workplace. The employer should introduce and adhere to an equal opportunities policy. All employees should be aware of such policies and be given training in their obligations not to discriminate. Disciplinary action should be taken against those who do discriminate. The individual discriminator still risks that action will be taken against him/her whether or not the employer is found responsible. An individual who wishes to pursue an action for discrimination may issue proceedings in an employment tribunal against his/her employer and against the individual discriminator. However, if the individual discriminator can prove that the action taken was based on an assurance from the employer that it was not discriminatory, he or she will not be held liable for discrimination.

Employment Tribunals not only deal with the complaint before them but they also have the power to make recommendations that the organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only the claimant.

The protected characteristics

The same groups as in the previous legislation are protected, although they are now called the ‘protected characteristics’. They are:

• age
• disability
• gender reassignment
• race
• religion or belief
• sex
• sexual orientation
• marriage and civil partnership
• pregnancy and maternity

Age

People of all ages are protected, both young and old. Age discrimination differs from the other groups because it is the only group where direct discrimination can be objectively justified if the employer can show that the discriminatory treatment is a proportionate means of achieving a legitimate aim (see below for more details). For example, encouraging and rewarding loyalty amongst staff could amount to a legitimate aim, but would only be justified if the discriminatory treatment (such as service-related rewards) actually contributed to the loyalty of the staff.

Disability

A person is disabled under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, such as using a telephone, reading a book or using public transport. Such a broad definition includes, but is not limited to, cancer, diabetes, learning disabilities, mental illnesses (if recognised by a respected body of medical opinion), impairments which come and go if the actual effect is likely to recur (such as rheumatoid arthritis) and severe disfigurements.

People with progressive conditions are covered from the moment the condition leads to impairment of their ability to carry out day-to-day activites. To be long term, the condition must not be of a temporary nature and must have lasted 12 months or more, or be likely to last 12 months or more. Some impairment, such as alcohol or drug addiction, hay fever and self-disfigurement (i.e. tattoos) are excluded from the definition of disability.

Stress, which affects so many people in many different ways, will not necessarily on its own amount to a disability. However, if the stress is, or becomes, sufficiently serious to be a clinically recognised stress-related illness, this may amount to a disability.

To assess whether a condition is a disability in this context, the best guidance is in a document issued by the government entitled "Guidance on matters to be taken into account in determining questions relating to the definition of disability", although this is guidance created under previous legislation. A copy can be obtained on the Equality and Human Rights Commission website www.equalityhumanrights.com or by calling the Equality and Human Rights Commission Helpline on 0845 604 6610.  

Reasonable adjustments

If any arrangement causes a substantial disadvantage to a disabled person, the employer must make reasonable adjustments to prevent the disadvantage. The term ‘arrangements’ includes everything that an employer arranges in the workplace and when it co-ordinates the recruitment of employees, for example, selection and interview procedures and working conditions.

Appropriate adjustments may include altering premises, reallocating duties, altering working hours, acquiring or modifying equipment and assigning someone to a different place of work. Whether it is reasonable for an employer to have to make a particular adjustment will depend on a number of factors:

• How effective it would be in preventing the disadvantage
• How practical it is
• The financial and other costs involved and the disruption likely to be caused
• The extent of the financial resources of the employer
• The availability of assistance to make the adjustment

The Equality Act extends the protection of disability discrimination to make it unlawful to treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer knows or could reasonably be expected to know, that the person has a disability. This type of discrimination is justifiable if the employer can show that it is a proportionate means of achieving a legitimate aim.

Pre-employment health-related checks

There are now limits to the circumstances when an employer may ask health-related questions before offering an individual a job. Prior to offering the job the employer can only ask such questions to:

• decide whether they need to make any reasonable adjustments during the selection process
• decide whether the person can carry out a function that is intrinsic to the job
• monitor diversity among the people applying for jobs
• take positive action to assist disabled people
• assure himself that the person has the disability where that disability is a genuine occupational requirement for the job

Gender reassignment

The Equality Act protects transsexuals. A transsexual is a person who intends to undergo, is undergoing, or has undergone a sex change. It is no longer a requirement to be under medical supervision to be protected, so a woman who chooses to live as a man but does not undergo a medical procedure would now be protected under the Equality Act.

Race

If a decision is based on an individual’s colour, race, nationality, national origins, or ethnic origins, it is a decision based on race and could be discriminatory.  

A group has an ethnic origin if it has:

• a long shared history; and
• a cultural tradition.

Additional relevant characteristics are:

• a common geographical origin or descent from a small number of common ancestors;
• a common language not necessarily peculiar to the group;
• a common literature peculiar to the group;
• a common religion different from that of the neighbouring or surrounding community;
• being a minority or being in an oppressed or dominant group in a large community.

It is accepted that Sikhs are an ethnic group, as are Jews and Gypsies.

Religion or belief

Religion or belief means any religion, religious belief or similar philosophical belief, and may also include a lack of belief. It is clear that people who belong to established religious traditions, such as Muslims, Jews and Catholics, are protected. Where it is less clear is in relation to non-conventional faiths or beliefs. The following factors are likely to assist in deciding on what is a religion or a belief:

• Is there collective worship?
• Is there a clear belief system?
• Is it a profound belief affecting the way of life or the view of the world?

Political opinion or belief is not included within the definition.

Sex

The Equality Act protects men and women.

Sexual orientation

The Equality Act protects people from discrimination whatever their sexual orientation, so it includes gay, lesbian, heterosexual and bisexual. The law does not protect individuals against discrimination relating to particular sexual practices or fetishes.

Marriage and civil partnership

The Equality Act protects people who are married or in a civil partnership against discrimination.  

Pregnancy and maternity

The Equality Act protects female employees on the grounds of pregnancy and other maternity-related reasons during the period of her pregnancy and any statutory maternity leave to which she is entitled.

Types of discrimination

There are seven types of discrimination as follows:

• direct discrimination
• associative discrimination
• perceptive discrimination
• indirect discrimination
• harassment
• third-party harassment
• victimisation

Direct discrimination

Direct discrimination is easy to recognise: it occurs where an employee has received less favourable treatment because of a protected characteristic. Direct discrimination applies to all of the protected characteristics.  

For there to be direct discrimination, the person’s protected characteristic must be the basis of the particular decision which results in the individual being deprived in some way and which gives rise to less favourable treatment. It is the treatment itself rather than its consequences which must be different and less favourable.

In most cases, in order to assess whether the treatment is less favourable the complainant is compared with another individual who does not possess the protected characteristic in equivalent circumstances.

An individual may exercise unconscious prejudices, because of his or her upbringing and perceptions, without being aware of the fact and this can amount to direct discrimination. It is important that employers give training in order to avoid such prejudices.

In order to succeed in an employment tribunal with a complaint of discrimination, the individual complaining of discrimination would only need to bring evidence that would lead the tribunal to presume or infer that there has been discrimination. It would then be up to the employer to disprove this presumption or inference. If the employer could not disprove it and there was a finding of direct discrimination, no question of justification for the employer’s treatment could arise (with the exception of age discrimination, see above).

The test of whether or not the individual would have received the same treatment but for his sex has proved problematic where the treatment complained of is the imposition of dress requirements. Therefore, there is no discrimination where male and female employees are subject to different but comparable dress requirements.

Associative discrimination

This is direct discrimination against someone because they associate with another person who has a protected characteristic. Associative discrimination is prohibited in relation to the following groups: age, disability, gender reassignment, race, religion or belief, sex or sexual orientation.

Perceptive discrimination

This is direct discrimination against an individual because others think they possess a particular protected characteristic, even if the person does not actually possess that characteristic. Perceptive discrimination is prohibited in relation to the following groups: age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation.

Indirect discrimination

Indirect discrimination covers less obvious discriminatory treatment.  Indirect discrimination takes place where an employer imposes a condition, rule, policy or practice to everyone which disadvantages people who share a protected characteristic.  

Indirect discrimination can be justified if the employer can show that it is a proportionate means of achieving a legitimate aim. This requires an objective balance between the discriminatory effect of the condition, rule, policy or practice and the reasonable needs of the employer who is applying it. Justification is a matter of fact for the employment tribunal, which means that one tribunal might reach one conclusion and another might reach a different conclusion.

For example, indirect sex discrimination would take place where an employer imposed a requirement for all employees to be subject to a five foot maximum height requirement. A much larger proportion of women than men would be able to meet this requirement and the employer would have to justify the reason for imposing such a condition. If the reason was because the job was to crew a boat with very low ceilings, such a requirement might be justified, but if the reason was because the employer wished to provide only one size of uniform, the employer would be indirectly discriminating against men.

Indirect discrimination is prohibited in relation to the following: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, and marriage and civil partnership.

Harassment

Harassment occurs when, on the grounds of one of the relevant protected characteristics, an employer engages in unwanted conduct which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.  

This is a relatively wide definition and its scope includes physical, verbal and non-verbal conduct. The conduct must be unwanted by the recipient, but it is irrelevant whether the harasser has a motive or intention of harassing. Furthermore, individuals can complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant protected characteristics themselves.

Harassment is prohibited in relation to the following groups: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Criminal Justice and Public Order Act 1994

Under this Act (only applicable in England and Wales), causing someone harassment, alarm or distress is a criminal offence punishable by six months’ imprisonment or a fine of £5,000. It is necessary to prove that the harasser’s action was intentional and also that someone was actually harassed. This offence relates to harassment by an individual and is of little use in the employment context, although employers may be under a duty to inform employees of their rights under the Act.

Protection from Harassment Act 1997

Under this Act, it is an offence for someone to pursue a course of conduct which amounts to harassment of another and which he knows, or ought to know, amounts to harassment. In addition to providing for harassers to be subject potentially to a fine of up to six months’ imprisonment (it can be up to five years’ imprisonment for very serious cases in Scotland), the Act creates a number of civil remedies including damages and restraining orders backed by powers of arrest. In Scotland, the civil remedies include damages, interdict and non-harassment orders with powers of arrest.

Harassment by a third party

This is harassment of an employee by third parties such as customers and clients. Harassment by third parties is prohibited in relation to the following: age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

Victimisation

An employer would be guilty of discrimination by victimisation if it treated an employee badly because he had made or supported a complaint or raised a grievance under the Act, or because he was suspected of doing so.  

Whether an employee has filed a complaint for discrimination with the Employment Tribunal, or simply raised the complaint internally, if he is treated badly in response to the complaint, he will have a claim for victimisation. In proving his case there is no need to compare the treatment with that of a person who has not made or supported the claim.

Exceptions to discrimination

There are a number of areas where exceptions to the law against discrimination exist. The main ones are:

Positive action

Employers are entitled to take voluntary positive action if they think that employees or job applicants who share a particular protected characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low.

Genuine occupational requirement

In limited circumstances it may lawful for an employer to discriminate if it is a genuine occupational requirement for the jobholder to have a particular protected characteristic (e.g. a charity that helps female victims of domestic violence is advertising for a counsellor and they consider it to be a genuine occupational requirement for the jobholder to be female).

Preventing discrimination

The best way to avoid discrimination complaints is to ensure that it does not occur in the first place. Employers should have an equal opportunities policy. Employees must be made aware of the existence of this policy, educated about the different types of discrimination and warned of its consequences. Employees should be aware that all acts of discrimination are taken very seriously by the employer and will be considered gross misconduct.

Dealing with discrimination complaints

Complaints of discrimination can be very disruptive to the workplace and must be dealt with very carefully. If an employee complains of discrimination, consider whether an informal approach to the alleged discriminator would be appropriate, for example, if it is a less serious complaint or the first instance of discrimination. Consider whether the person complaining of discrimination wants an informal approach or would prefer more formal action to be taken. If an informal warning is appropriate, the alleged discriminator should be consulted to explain that the conduct is upsetting the employee, that it is considered discrimination and must not continue. He/she should also be warned that the matter will be kept under review. He/she must be shown the policy which is in place and warned that if matters do not improve, disciplinary action will be taken. The person who has complained should be kept informed of the warning given and told to inform the employer if he/she has any further complaints against the alleged discriminator. Where an informal approach is inappropriate or if the complainant wants formal action to be taken, the disciplinary procedure should be followed in the following way:

• Ask the complainant for a full statement
• Suspend the alleged discriminator pending the investigation of the complaint (only if appropriate)
• Take statements from all staff that can provide evidence about the alleged act or acts of discrimination
• Interview the alleged discriminator and invite him or her to provide a statement
• A disciplinary hearing to give the alleged discriminator the opportunity to answer the complaint or justify or excuse his/her conduct will be necessary if there is substance to or doubt in relation to the matters complained of
• Very often there will be no witnesses and it will be one word against the other, leaving it to the employer to decide which version to believe
• If the conclusion is that discrimination/harassment has taken place, consider a penalty. In serious cases, the likely outcome will be dismissal although, in some circumstances, it may be appropriate to transfer the person who has discriminated/harassed. With discrimination of a less serious nature, a final written warning will be appropriate

Equal pay

Discrimination between the sexes in the terms of their contracts of employment is unlawful. This typically occurs in matters such as salary, bonus payments and benefits. The law on equal pay protects males as well as females and it benefits employees under a contract of employment as well as self-employed people under a contract for services. A code of practice on pay which aims to provide practical guidance and includes a suggested equal pay policy is available from the Equality and Human Rights Commission.

An individual can claim equality if he can establish one of the following:

• that he/she is carrying out work which is the same or broadly similar to work being carried out by someone of the opposite sex in the same employment; or
• that he/she is carrying out work which has been rated as equal (through a job evaluation study) to work being carried out by someone of the opposite sex in the same employment; or
• that he/she is carrying out work which is of equal value to the work of someone of the opposite sex in the same employment.

Equality clause

If an individual can establish that one of the three justifications above for equality applies and his/her contract contains terms less beneficial than those enjoyed by the comparator of the opposite sex, or which omits a beneficial term enjoyed by the comparator, he/she can apply to an employment tribunal to have an equality clause implied into his/her contract. Such a clause modifies the individual’s contract so that it is equivalent to the comparator’s contract.

Other remedies

In addition to an equality clause in the contract, a successful complainant in a complaint may be awarded compensation for loss suffered in the past as a result of lack of equality.

Pay secrecy

It is unlawful for employers to prevent or restrict employees from talking to other employees about pay to establish whether differences in pay exist that are related to protected characteristics. Any terms in a contract that require pay secrecy of this nature are unenforceable.  

Comparison

Previous law on equal pay required the claimant to make a comparison with a person of the opposite sex who exists (or has existed) who is doing similar work, work graded as equal or work of equal value and who is employed by the same employer (or with an associated employer) either at the same establishment or at an establishment within Great Britain where, in general, common terms and conditions are observed. The Equality Act retains the framework that was previously in place and in most circumstances the principle of the comparator continues. However, if no real person comparator can be found, the Equality Act allows a claim of direct pay discrimination to be made.

Defence

An employer can successfully defend an equal pay claim if it can:

• prove that the work is not like or similar, not rated as equal or not of equal value; or
• prove that the difference between the complainant’s contract and the comparison contract is genuinely due to a material factor which is not the difference in sex; this requires that the employer shows the reason for the factor and that the factor identified objectively justifies the difference in the contracts.

6th April 2009 - Employment Law Changes

From 6 April 2009 a number of employment law changes have occurred. They are as follows:

Statutory grievance procedure (or sometimes referred to as statutory dispute resolution procedure)

This procedure is abolished from 6 April 2009. All references to this procedure in the book should be ignored.  Employers are still required to follow a fair procedure in dealing with disciplinary matters and grievances. ACAS have issued a new code on disciplinary and grievance procedures. Please see www.acas.org.uk. If the code is not followed, tribunal awards can be increased by up to 25%.

Paid holiday

From 1 April 2009 paid holiday increases to 5.6 weeks (or 28 days) for a full-time worker or pro-rata that amount for a part-time worker. This can include bank and public holidays.

Flexible working

From 6 April 2009 parents with children under 17 can now request flexible working (previously it was parents with children under six). The same rules apply in respect of what the employer must do when they receive such a request.

Pay increases

From 6 April 2009 Statutory Maternity Pay (SMP)/Statutory Paternity Pay (SPP)/Statutory Adoption Pay (SAP) increases to £123.06 and Statutory Sick Pay (SSP) increases to £79.15.

The National Insurance contribution rate is now £90.