RIGHTS AT WORK – HEALTH & SAFETY, EMPLOYMENT LAW 1. the employment contract2. employer’s tort liability for injuries3. criminal law regulation of safety at work4. anti- discrimination legislation5. wrongful dismissal6. unfair dismissal7. redundancy

The Employment Contract

Employees have a contract of service Self employed contractors have a contract for services

Employers have greater legal obligations to employees than contractors ie NI contributions, sick pay, protection against unfair and wrongful dismissal, & redundancy

The Employment Contract

Contract of employment does not have to be written ie can be verbal

But Employment Rights Act (1996) ERA does oblige

an employer to provide within 2 months of commencing employment, a written statement of the key terms in the contract.

Contents?

Common Law Duties of the Employee Duty to work with reasonable care and skill ie

not be negligent. Gross negligence can result in instant dismissal

Duty to obey reasonable orders (as long as not outside job description)

See employment law handout Duty to act in good faith – ie 1. not to act in

conflict with employer’s interests, 2. not to reveal confidential information, 3. to account for all profits (not to make unauthorised profit from job)

Common Law Duties of the Employer To pay the employee as agreed by the

contract Not to undermine the trust and confidence

of the employee (reasonable and not abusive conduct) (leaflet)

To provide safe working conditions (also statutory laws)

Employers’ Civil Liability for Industrial Injuries If an employee is injured at work, they

could take action as follows: Tort – negligence – breach of duty of care Breach of Statute eg Health & Safety Act

1974

Employers’ Common Law Liability

Employers have an obligation to: Ensure staff are competent (selection, training,

supervision, discipline) leaflet Have safe premises, plant & equipment (leaflet) Have a safe system of work ie protective

clothing, safe working procedures, sufficient washing facilities, 1st aid facilities, warning signs (leaflet)

Criminal Law Regulation of Safety In the Workplace Factories Act 1802 1st statute to protect

the welfare of employees. Health & Safety at Work Act (1974) gives

powers to Dept of Work & Pensions (formerly Dept of Employment) to make regulations covering specific areas of workplace safety.

Health & Safety at Work Act (1974)

3 areas: Imposed general duties on both employers and

employees to maintain health & safety Created the Health & Safety Executive, which

takes action against employers for breaching H & S

Gives powers to Dept of Work and Pensions to make detailed, legally binding , regulations to cover particular hazards

Rights at work, H & S quiz

Health & Safety at Work Act (1974

S.2 employer’s duty to employeesTo ensure as far as practicably reasonable the health,

safety and welfare of their employees S.7 employees’ dutyTo take reasonable care of their own & other’s H & STo co-operate with employers on H & S matters S.3 Employer’s duty to other personsTo ensure that visitors are kept safe S.2To keep employees informed of H & S matters and

provision in the workplace

Powers of the Health & Safety Executive Gov’t body Can prosecute any statutory breaches and

obstruction to inspection Issue improvement notices – given time

limits to make improvements Prohibition notices – prohibits continuance

of any activity that is unsafe, until resolved

RIGHTS AT WORK:PROTECTION AGAINST DISCRIMINATION Equal Pay Act 1970 ( as amended by EP

Regulations 1983) Implies the following terms into all

contracts of employment S1. every woman has the right to be paid

at the same rate as a man doing the same/similar job. Leaflet

Equal Pay Claims Procedure

If an employee believes they are doing work of equal value, but not receiving equal money, the following process is followed:

1. applicant applies to an employment tribunal 2. case is referred to ACAS and settlement attempted 3. if no settlement reached, the burden of proof is on the

applicant (employee) to prove their case 4. tribunal refers case to independent expert who carries

out study and reports back to tribunal – although tribunal are not bound by report.

Sex Discrimination Act 1975

It is illegal to discriminate directly or indirectly against persons on the grounds of their sex or marital status.

Direct discrimination is overt ie something is a ‘man’s job’ Indirect discrimination – imposes requirements which are

likely to be able to be satisfied by a much smaller number of women than by men – unless it can be shown to be justified. Leaflet

Act applies equally to men Equal Treatment Directive 2000 harassment is also

treated as direct discrimination

Sex Discrimination Act 1975

S. 6 the act also covers other situations where discrimination may also occur and it ensures that these areas are covered:

Eg job advertisements, interview & selection procedures, training, promotion, job facilities

S.7 Genuine Occupational Qualifications Sometimes discrimination may be fair eg Nature of job – male role in a film, Issues of privacy & decency – jobs in private homes Single sex hospitals & prisons

Sex Discrimination Act 1975

S.41 employers are vicariously liable for anything done by its employees that contravenes the act - whether it knew about it or not

Enforcing the act – a complainant has 3 months to take the matter to an employment tribunal. No minimum limit £

Protection Against Less Favourable Treatment due to Pregnancy & Parental Responsibilities Equal Treatment Directive and Pregnant Workers

Directive 1992 give women protection whilst they are still at work and for several months after

ERA 1999 gives right to time off work for ante-natal care, maternity leave, pay during absences, right to return to work after the birth.

Parental Leave Directive 1997 gives employees time off to deal with domestic emergencies caring for their dependants

Employment Rights Act 2002 introduced paternity leave and adoption leave with pay

Equal Opportunities Commission

Obtained its powers from the SDA Can take action in the County Court to obtain an

injunction against employers who are behaving illegally

Assist victims of discrimination with information, legal advice and representation

Carry out research & educational projects Conduct formal investigations of workplaces Issue and enforce non-discriminatory notices

Race Relations Act 1976 (RRA)

Amended by Race Relations (Amendment) Act 2000 (RRAA)

Similar to SDA – embraces concepts of direct and indirect discrimination

Makes discrimination illegal, not only at work, but also in education and service provision

RRAA also places duties on public authorities to eliminate unlawful discrimination and promote equal opportunities and good relationships between people in different ethnic groups.

‘Racial grounds’ - also encompasses colour, race, nationality, ethnic origins. leaflet

Race Relations Act 1976 (RRA)

S. 32. employers can also be held vicariously liable for acts of their employees.leaflet.

But – the more appalling the behaviour by the employee, the less likely the employer will be held liable

Chief Constable of Bedfordshire v Liversedge 2002. Chief Constables are now vicariously liable for the acts of their employees.

Commission for Racial Equality

S. 43 consists of 8-15 members, appointed by Secretary of State,

Duty to work towards eliminating racial discrimination

Many powers – issue codes of practice, advise, monitor, inspect and similar enforcement powers as EOC

Disability Discrimination Act 1995

60,000 disabled people of working age in UK, only 30,000 are in employment. On average they are paid 20% less than able bodied employees.(2001)

S1. defines disability as a physical or mental impairment which has a substantial and adverse long term effect on a person’s ability to cope with everyday activities.

The impairment must be medically recognised eg mobility, manual dexterity, concentration, asthma, ME, Chronic Fatigue Syndrome

Progressive conditions also recognised eg multiple sclerosis, HIV/AIDS,

Certain conditions are specifically excluded eg addiction to alcoholism, nicotine and other substances. As are personality disorders such as pyromania and voyeurism

Disability Discrimination Act 1995

S.5 states that employer discrimination may occur against a person if

For a reason related to their disability, they are treated less favourably than others without a disability

The employer cannot show that the discrimination was justified (for material & substantial reasons)

Act only applies to workplaces with more than 20 employees

Disability Discrimination Act 1995

S. 6 employers are required to make reasonable adjustments (leaflet)

Disability Rights Commission, created by Disability Rights Commission Act 1998, has similar powers as EOC and CRE

Equal Treatment Act 2006 Illegal to discriminate on age grounds

Rights at work: Protection Against Dismissal and Redundancy Wrongful Dismissal – dismissed without

being given appropriate notice. Summary (instant) dismissal is justified if employer can prove theft, fraud, violence, drunkenness, reckless behaviour, or wilful refusal to obey a reasonable order

Minimum Notice Periods

ERA 1996 the following notice periods apply unless the contract gives longer periods

1month in employment = no notice 1mth – 2yrs = 1 weeks’ notice 2-10 yrs = one weeks’ notice for every

completed year 10yrs + = 12 weeks’ notice

Remedies for Wrongful Dismissal

Employee can sue for breach of contract in County or High Court to recover lost earnings payable during notice period.

Unfair Dismissal

ERA 1996 and Employment Relations Act 1999 Employers must be able to prove that they acted fairly

and with reasonable cause if they dismiss an employee. Some employees cannot claim unfair dismissal 1. employees over retirement age 2. employees whose contracts of employment require

them to work outside UK 3.employees on short term contracts who have waived

their rights to claim

Eligibility to Claim

Claims must be brought within 3 months of contract terminating

The following criteria must be satisfied:1. there must be continuous employment of at

least 1 year2.The employee must prove the fact of the

dismissal3. The employer must prove the dismissal was not

unfair

Employees must prove the Facts Dismissal may be actual, constructive or

deemed Actual – employer clearly indicates an intention

to dismiss with employee’s services Constructive – employee resigns claiming the

employer’s behaviour made it impossible to stay eg employer’s failure to prevent sexual harassment or bullying

Deemed – eg an employee has been on maternity leave but has given notice that she wishes to return to work, is deemed dismissed if the employer refuses to let her resume her job

Employer must prove that there were Fair grounds for dismissal S98. ERA 1995. 5 grounds for fair dismissal Lack of appropriate qualifications/capability to do

the job Employee’s conduct Employee was redundant – job has ceased to

exist Continuance of employment would be illegal Any other substantial reason Employment – reasons for dismissal leaflet

Dismissal Automatically Unfair in Certain Circumstances If a woman is exercising her maternity rights Health & Safety representatives Trustees of Occupational Pension Schemes Employees representing the workforce in redundancy

consultations Employees who ‘whistleblow’ Employees who have taken action legal against their

employers Employees accompanying workers to a disciplinary

hearing

Remedies for Unfair Dismissal

Reinstatement – at the request of the employee if it is practicable – on same pay and conditions as before

Re-engagement order – in a job which is reasonably comparable to the post before

Compensation

Redundancy

A redundant employee may have the right to the following:

Compensation – ie redundancy payment Unfair dismissal – employees who can

prove that the method by which they were selected for redundancy did not meet the standards of good industrial practice

Redundancy Payment Eligibility

To claim compensation, the employee must be able to prove

1 year’s continuous service Some types of employee are also

excluded (ie over retirement age, work outside UK, short term contract)

Financial Entitlement

Age 18-21 = ½ week’s pay per year of service Age 22-40 = 1 week’s pay per year of service 41-64 = 1 ½ week’s pay per year of service Week’s pay max of £220 But employers can offer more if they wish Rest of ques