LO1: Understand the legal framework for employment regulation in the UK

7OS01 Advanced Employment Law in Practice

Learner Assessment Brief

Level 7 Advanced Diploma in

• Strategic People Management
• Strategic Learning and Development

This unit focuses on the major principles that underpin employment law, the defences which are available to employers and the remedies that claimants seek when they bring their cases to court. It examines the more common issues relating to employment law which arise in organisations with a view to preparing a defence or helping to settle claims ahead of a hearing. Integral to this is the legal system, the main sources of law and the evolution of contemporary employment regulation in the UK.

CIPD’s insight

Employment Law

Employment law regulates the relationship between employers and employees. It governs what employers can expect from employees, what employers can ask employees to do, and employees’ rights at work.

On the employment law topic pages, accessed via the link below, you’ll find information on the development of employment law, new and amended statutes and statutory rates, as well as resources covering the legal requirements, checks and processes involved in recruitment; the terms and conditions of employment; data protection; holidays, working hours and pay; health and safety regulations; maternity and parental rights; discrimination; discipline, grievance and dismissal procedures; whistleblowing; employment tribunals; TUPE; and redundancy.

https://www.cipd.co.uk/knowledge/fundamentals/emp-law

Employment law update

The student employment law update provides a comprehensive update on the most important employment law developments in the UK and anticipates further changes. It is updated every six months and is divided into four sections:

• Important statutory developments since the last update
• Significant court and tribunal decisions, focusing on judgments that have the most actual or potential consequences for HRM practice. It also gives brief summaries of cases that, while not hugely significant in their impact, are nonetheless interesting or remarkable in some way.
• Key future developments in employment law
• Useful sources of further information.

https://www.cipd.co.uk/knowledge/fundamentals/emp-law/student-tutor-update

Assessment Principles

In your assignments at Level 7 you will be required to achieve the following:

1) Systematic understanding of knowledge and techniques, and a critical awareness of problems and/or new insights in the field of study and area of professional practice.

2) Originality in the application of knowledge relating to practical issues.

3) Ability to make decisions about complex issues, both systematically and creatively, and justify your judgements in the absence of complete data.

4) Ability to show self-direction and insight in tackling and solving problems, and in planning and implementing tasks at a professional level.

5) Clarity and confidence in communicating conclusions which can influence both specialist and non-specialist audiences.

6) Demonstrate insight in tackling and solving problems, and in planning and implementing tasks at a professional level.

7) Critical reflection and a passion for learning to advance your own knowledge and understanding through independent learning and the development of new skills at a high level.

8) Consistent and professional standard of presentation.

Preparation for the Tasks:

• Refer to the indicative content in the unit to guide and support your evidence.
• Ensure that the evidence generated for this assessment remains your own work.

You will also benefit from:

• Reflecting on your own experiences of learning opportunities and training and continuing professional development.
• Reading the CIPD Insight, Fact Sheets and related online material on these topics.
• You should relate academic concepts, theories, and professional practice to the assessment task(s), in a critical and informed way, and with reference to key texts, articles and other publications.

Don’t forget to:

• Complete the front cover sheet, sign with a “wet signature” and place at the front of your assessment.
• Use the bullet points below each task as headings and sub-headings so your marker can see where your answer begins.

Task 1 – Short Article

LO1: Understand the legal framework for employment regulation in the UKYou have been asked by your People Director to create a short briefing note for the wider people team, covering this knowledge element. This is part of a learn and share initiative within the organisation.Select a leading case from across the field of employment law (i.e., one decided in one of the higher courts) which you consider has had a significant impact on practice. You can assess it from an employer, an employee or a general public policy perspective. Explain why you think it has proven to be significant. You can draw on examples, published statistics and/or commentaries to justify your argument.

When conducting your assessment, areas you could include are:

• The major sources of employment law and how the case is linked.
• An analysis of the main employment rights and relating to the points of law, how these have developed over time.
• An assessment of how the leading case was decided through the courts and the role of legal and quasi-legal institutions in the administration and enfrcement of employment law.
• Your thoughts on future developments relating to the case and general debates surrounding the future of employment regulation in the UK.

Your evidence must consist of:

• Short Article (1,000 words)

Task 2 – Report

LO2: Understand regulations that aim to protect employees from unlawful acts of discrimination

LO3: Understand law in relation to establishment, alteration and termination of employment contracts

LO4: Understand compliance in relation to further regulations relevant to major areas of people practice

Brookes Insurance Group are an SME employing a total of 200 employees across 3 sites. They provide personal and commercial insurance to clients across the UK and have been established since 2003.

The Managing Director, Pete Swales, has recently taken a step back from the organisation and Charles Haigh, the Commercial Director, has stepped into the role of running all aspects of the business. There have recently been some increased levels of turnover in certain departments, and it is causing some unrest across the business. Charles has seen a sharp upturn in people management issues and has approached a local HR Consultancy to advise on the risks and how to manage the various situations.

1. Tej works in the commercial team and has been with the organisation for five years. He has always been a solid performer but recently he has started to become withdrawn at work and it has impacted on both his performance and attendance. Following a series of difficult events, Tej is depressed. Tej is managed by Louise, who has worked in the organisation for the last 18 months. Louise hasn’t had a 1:1 with Tej for some time and thinks ‘he’s just being moody’. She is dismissive of the absence and has just issued a first written warning for absence based on the policy triggers.
2. Sean has worked in the Finance team for the past 4 years. He is frequently off work, but his attendance has never been formally recorded nor managed, neither has his performance. Ruby recently joined the team and at times needs to work with Sean. She noticed that there were frequent mistakes and found herself taking on an increased workload to fix the mistakes. After speaking with colleagues, she found that this was a typical thing that happened. In the absence of any performance management, colleagues picked up the slack. Following a particularly costly error, Charles Haigh dismissed him on the spot. He was provided with his notice pay.
3. Phil works as a Personal Lines Advisor and has been with the organisation for 6 years, 4 of these in an administrative role. During one of the acquisitions Phil was assimilated into the personal lines role and provided with some training. 6 months into the role his wife passed away and he was off work for a period of 3 months. Since then, he has been struggling at work and this has been noticed by his manager. Phil can be challenging to manage and whilst he hasn’t been forthcoming with his manager, he has been taking anti-depressants for some time. His manager has raised performance concerns and Phil has not taken this well. During busy times his manager hasn’t always held 1:1s and whilst only a few were missed, there have been some delays on sending notes. Phil started to feel that his manager was targeting him specifically and believed the criticism to be unfounded. The most recent incident involved Phil’s appraisal meeting. Whilst Phil knew the rooms, they had been labelled by the facilitates team incorrectly and Phil had sat in a different (incorrect) room waiting for his manager. His manager sat in the correct room. After 45minutes waiting, Phil’s manager returned to the main office, following closely by Phil, who shouted loudly about his manager leaving him waiting, before announcing to everyone that he was having his leaving drinks that evening. The following day, Phil sent a formal grievance to Charles Haigh, followed by a letter of resignation.
4. Rebecca is 6 months pregnant and is married to Tej. Rebecca has been experiencing a difficult pregnancy which has resulted in frequent absence. She requests time off to attend an antenatal appointment and asks Tej to join her. She is told by her manager, Mike, that she has to make the time up and Tej is told that he cannot be released due to low levels of staffing. In the last 6 months he has been pressured into cancelling his holiday on 3 occasions due to workload in the office. Rebecca has mentioned to Mike that she is interested in taking shared parental leave.
5. Ciara joined the personal lines team as an administrator 5 months ago after graduating from university. Ciara is 23 and is paid the NMW but has not yet received a contract of employment. Jed has been training Ciara. He has worked for the organisation for 5 years, across 2 successive fixed term contracts. His role is to support regulated activity and he consistently works over and above his contracted 40hrs per week. The contract of employment sets out that he has to work additional hours (unpaid) if the business required it. In his role he attends frequent client meetings, meaning that he could be on the road a lot, and this includes hours spent travelling to and from last appointments if there were traffic delays. Jed has raised a grievance, stating that he regularly works in excess of 50hrs a week and isn’t paid for it, believing this to be in breach of Working Time Regulations. He has previously opted out and as part of his remuneration package he receives commission and a bonus. Charles has suggested that his fixed term contract should be ended as he is a ‘troublemaker’.

Based on the information provided:

a) Identify and assess the level of risk from claims relating to potentially unlawful acts of discrimination. (LO2)

b) What issues do you see with the practices surrounding contractual arrangements? Assess the risks, possible defences and ways to mitigate. (LO3)

c) Advise Mike on the practical aspects of family friendly employment rights and the legal implications of a failure to comply. (LO4)

d) What potential claims might Brookes Insurance Group face with regards to Ciara and Jed, and what arguments can be put forward to mitigate? (LO4)

It is essential that you demonstrate your understanding of employment legislation, best practice and justify your advice with reference to relevant case law. It is important you use your word count carefully and ensure your answers follow the assessment principles laid out on page 3.

Assessment Grading

You will receive either a Pass, Merit, Distinction or Refer/Fail result at unit level.

The grid below shows the range of results you could achieve based on total number of marks awarded across all assessment criteria.

To pass the unit assessment you must achieve a Pass or above for each of the learning outcomes.

The overall result achieved will dictate the outcome you receive for the unit, provided

NONE of the assessment criteria have been failed or referred.

You will either receive a Pass, Merit, Distinction or Refer/Fail from the CIPD once the work has been moderated.

Generic grade descriptors for Level 7 assessments

Task 1 – Short Article: Significant Employment Law Case

LO1: Understand the legal framework for employment regulation in the UK

Title: The Impact of British Airways plc v. Williams on Employment Rights

Introduction

Employment law is pivotal in shaping the relationship between employers and employees, guiding expectations and rights in the workplace. Among the numerous influential cases in this field, British Airways plc v. Williams [2011] UKSC 43 stands out for its significant impact on the interpretation of age discrimination in employment benefits. This article explores the case’s implications for employment law, its linkage to major sources of law, and its influence on future developments.

Major Sources of Employment Law

Employment law in the UK derives from several primary sources:

1. Statute Law: This includes acts passed by Parliament that define employment rights and obligations. Key statutes include the Employment Rights Act 1996, which provides protections regarding unfair dismissal, and the Equality Act 2010, which consolidates anti-discrimination laws.
2. Common Law: Derived from judicial decisions, common law evolves through the courts` interpretation of statutes and precedents set in previous cases.
3. European Union Law: Prior to Brexit, EU directives significantly influenced UK employment law. Although many provisions have been retained post-Brexit, the EU`s influence remains a critical part of the historical development of employment rights.
4. Tribunal and Court Decisions: Employment tribunals and higher courts, such as the Employment Appeal Tribunal and the Supreme Court, play a crucial role in interpreting and enforcing employment law.

Case Analysis: British Airways plc v. Williams

The case of British Airways plc v. Williams addressed whether British Airways` policy of providing discounted flights to employees, based on age, constituted indirect age discrimination. The policy in question provided more beneficial travel perks to younger employees, which was contested by older employees, including Williams.

Key Points of Law and Development Over Time

Williams was significant in interpreting the Employment Equality (Age) Regulations 2006, which aimed to prevent age discrimination. The regulations sought to ensure that policies and practices did not disproportionately disadvantage employees based on age. The Supreme Court’s decision reinforced that indirect discrimination occurs if a policy, though seemingly neutral, disproportionately affects a certain age group and lacks a justifiable aim.

Court Decision and Legal Institutions

The Supreme Court ruled in favour of Williams, determining that BA`s policy constituted indirect discrimination. The case underscored the necessity for employers to ensure that their benefits schemes are equitable and do not unintentionally disadvantage older employees. The court`s decision was influenced by its role in interpreting statutory provisions and the Employment Tribunal’s findings, demonstrating the vital function of legal institutions in the enforcement of employment rights.

Implications and Future Developments

The ruling in Williams had several implications:

• Employer Practices: Employers were prompted to review and adjust their benefits policies to comply with anti-discrimination laws.
• Legal Compliance: The case highlighted the need for ongoing vigilance in ensuring that employment policies do not inadvertently discriminate against any age group.
• Future Developments: The principles established in Williams are likely to influence future case law, particularly in areas concerning indirect discrimination and the treatment of benefits. As employment law evolves, further clarification and refinement of these principles may emerge.

Conclusion

The British Airways plc v. Williams case remains a landmark decision in employment law, illustrating the importance of equitable treatment in employee benefits and the broader implications of age discrimination. Employers must ensure that their policies are compliant with current legal standards to avoid potential disputes and maintain fair practices.

Task 2 – Report: Managing Employment Law Risks

Introduction

Brookes Insurance Group, an SME with 200 employees, faces several employment law issues that need addressing to ensure compliance and mitigate potential risks. This report evaluates these issues and provides strategic guidance for managing them effectively.

a) Risks Related to Discrimination Claims (LO2)

1. Tej`s Depression:
   • Risk: Tej’s depression could qualify as a disability under the Equality Act 2010, making him entitled to reasonable adjustments and protection from discrimination. Failure to address his condition adequately may result in claims of discrimination.
   • Assessment: The fact that Tej is experiencing depression, which is impacting his performance and attendance, suggests that his condition might be covered under disability discrimination laws. The first written warning issued without proper consideration of his health could be viewed as discriminatory.
   • Mitigation: The company should implement a robust process for managing employees with health issues, including:
     • Reasonable Adjustments: Assessing and implementing adjustments to Tej’s role to accommodate his condition.
     • Support Mechanisms: Providing access to occupational health services and ensuring that managers are trained to handle such situations sensitively.
     • Policy Review: Revisiting and updating the absence management policy to ensure it aligns with legal requirements regarding employees with disabilities.
2. Phil’s Performance Issues:
   • Risk: Performance issues linked to personal trauma and ongoing health problems could result in claims for discrimination, especially if not handled fairly and consistently.
   • Assessment: Phil’s performance problems following a period of personal loss and medication raise concerns about whether he has been treated fairly. The lack of regular 1:1 meetings and the perceived targeting of Phil could lead to claims of unfair treatment and disability discrimination.
   • Mitigation: To manage this risk:
     • Fair Performance Management: Ensure that performance reviews are conducted fairly, considering personal circumstances and offering support where necessary.
     • Documentation: Maintain thorough documentation of all performance-related discussions and decisions.
     • Training: Train managers to handle sensitive situations involving employees` health and personal issues.
3. Rebecca’s Pregnancy:
   • Risk: Rebecca’s treatment, including the refusal to allow time off for antenatal appointments and undue pressure to cancel holidays, may result in claims for discrimination related to maternity rights.
   • Assessment: Pregnancy and maternity rights are protected under the Equality Act 2010, and any failure to accommodate these rights could lead to legal claims.
   • Mitigation: The company should:
     • Ensure Compliance: Follow legal requirements for maternity leave, antenatal appointments, and protection from discrimination.
     • Clear Communication: Communicate clearly with employees about their rights and ensure that managers are trained to support pregnant employees.
     • Review Policies: Regularly review and update policies to ensure they comply with current maternity and parental leave regulations.

b) Issues with Contractual Arrangements (LO3)

1. Tej’s Contractual Issues:
   • Issue: The lack of proper management and support for employees with health conditions can lead to potential claims if mishandled.
   • Risk: Mishandling Tej’s situation may lead to claims for unfair dismissal or discrimination if not addressed in accordance with legal requirements.
   • Mitigation: Key actions include:
     • Management Training: Train managers to handle health-related absences and performance issues effectively.
     • Policy Updates: Ensure that absence management and support policies are up-to-date and compliant with legal standards.
2. Sean’s Dismissal:
   • Issue: Dismissing Sean without formal performance management records poses risks of unfair dismissal claims.
   • Risk: Without proper documentation and a fair process, the dismissal could be deemed unfair.
   • Mitigation: Implement comprehensive performance management procedures:
     • Record Keeping: Maintain detailed records of performance issues and management actions.
     • Fair Process: Follow a structured disciplinary process, including warnings and opportunities for improvement before dismissal.
3. Ciara’s Missing Contract:
   • Issue: Failure to provide a written contract of employment may lead to claims for breach of contract and unpaid wages.
   • Risk: The absence of a contract can result in disputes over terms and conditions, leading to potential legal claims.
   • Mitigation: Ensure all employees receive a written contract outlining their terms of employment:
     • Immediate Action: Provide Ciara with a written contract and clarify any terms regarding her employment.
     • Contract Review: Regularly review and update employment contracts to ensure compliance with legal requirements.
4. Jed’s Working Hours:
   • Issue: Working beyond contracted hours without proper compensation may breach Working Time Regulations.
   • Risk: Claims for unpaid overtime or breach of working time regulations could arise.
   • Mitigation: Address working time issues by:
     • Contract Review: Adjust Jed’s contract to reflect actual working hours and ensure compliance with Working Time Regulations.
     • Compensation: Provide appropriate compensation for hours worked beyond the contracted period, if applicable.

c) Advice on Family Friendly Employment Rights (LO4)

Advice to Mike:

• Rights: Rebecca is entitled to take time off for antenatal appointments without making up the time and has the right to share parental leave. It is also unlawful to pressure employees into cancelling their holidays.
• Legal Implications: Failure to comply with these rights could result in claims for discrimination and unfair treatment. To avoid legal issues:
  • Adhere to Statutory Rights: Ensure all policies are in line with statutory rights related to maternity and parental leave.
  • Communication: Clearly communicate entitlements and support available to employees.
  • Training: Provide training for managers on family-friendly policies and employee rights.

d) Potential Claims and Mitigation Strategies (LO4)

1. Ciara’s Claim:
   • Potential Claim: Ciara could claim for breach of contract and unpaid wages due to the lack of a written contract.
   • Mitigation: Address the issue by:
     • Providing a Contract: Issue a written contract immediately and ensure that all terms are clear and compliant with employment laws.
     • Rectifying Pay Issues: Review and adjust any discrepancies in pay to resolve potential claims.
2. Jed’s Claim:
   • Potential Claim: Jed may claim for unpaid overtime under the Working Time Regulations.
   • Mitigation: To address this claim:
     • Review Working Hours: Ensure that Jed’s working hours are accurately reflected in his contract.
     • Provide Compensation: Adjust compensation as needed to align with legal requirements for overtime.

Conclusion

Brookes Insurance Group must address the identified issues to mitigate legal risks and ensure compliance with employment laws. Implementing effective HR policies, providing manager training, and ensuring clear communication with employees will help in managing these risks and fostering a fair workplace environment.

References

• British Airways plc v. Williams [2011] UKSC 43
• Employment Rights Act 1996