Explain how contracts of employment are established.

Explain how contracts of employment are established.

Ref No 5EML IHR110001 (QCF) Version 1.0 September 2015
Student name:CRITERIAMET/ NOT YET MET
COMMENTSLO1: Understand the purpose of employment regulation and the way it is enforced in practice.1.1 Explain the aims and objectives ofemployment regulation.
Action need to talk about such purposes social justice creating a level playing field etc1.2 Describe the role played by the tribunal and courts system in enforcing employment law in the UK1.3 Explain how cases are settled before and during formal legal procedures.
Action explaining settlement agreements mediation and understanding of ACAS role in conciliationLO2: Know how to manage recruitment and selection activities lawfully.2.1 Identify the main principles of discrimination law in recruitment and selection and in employment.2.2 Explain how contracts of employment are established.
Action explain about offer and acceptance express and implied terms etcLO3: Know how to manage change and reorganisation lawfully.3.1 Describe when and how contracts can be changed lawfully.
The importance of consultation should be more fully stressed.3.2 Explain the main requirements of redundancy law.
Action explain the actual law on redundancy3.3 Explain the main requirements of the law on business transfers.
The TUPE regulations are what you need to address.LO4: Know how to manage issues relating to pay and working time lawfully.4.1 Identify the major statutory rights workers have in the fields of pay leave and working time.
holidays should be covered also4.2 Explain the major requirements of equal pay law.
Good explanation of the essential requirements of equal pay4.3 Explain major maternity paternity and other family-friendly employment rights.
LO5: Be able to ensure that staff are treated lawfully when they are at work.5.1 Identify the major requirements of health and safety law.5.2 Explain the significance of implied duties as regards the management of employees at work.
Explain What are the implied duties in this case and what claims might the employee be able to pursue5.3 Explain the principles of the law on freedom of association.LO6: Know how to manage performance and disciplinary matters lawfully.6.1 Explain the main requirements of unfair dismissal law in respect of capability and misconduct issues.
Action you need to explain the difference between capability and conduct and relate it to the drug-taking scenario6.2 Explain the scope of the right for employees to be accompanied at serious discipline and grievance hearings.ASSESSMENT OUTCOMETitle of unit/s
Employment LawUnit No/s
5EMLLevel
5Credit value
6Assessment method(s)
Written answers to questionsLearning outcomes:1 Understand the purpose of employment regulation and the way it is enforced in practice.2 Know how to manage recruitment and selection activities lawfully.3 Know how to manage change and reorganisation lawfully.4 Know how to manage issues relating to pay and working time lawfully.5 Be able to ensure that staff are treated lawfully when they are at work.6 Know how to manage performance and disciplinary matters lawfully.Assessment brief/activityYou are required to provide written answers to each of the six activities below:1. Explain the purpose of employment law and how it is enforced. Briefly describe the role played by the tribunal and courts system in enforcing employment law. Include how cases are settled before and during formal legal procedures.2. You are asked to develop a training session for line managers with the title managing recruitment selection and appointments lawfully. Outline the key points you would include in your presentation and why. Provide an example to illustrate your key points.3. Your organisation is planning a major reorganisation that will involve relocating some people to other sites and outsourcing a major function to a sub-contractor. You should summarise the major ways the law protects employees in such situations.4. You are asked to summarise for managers the key issues they need to consider to manage pay leave and working time lawfully. Ensure you include the major statutory rights equal pay and maternity paternity and other family-friendly employment rights.5. An employee makes a formal complaint about serious bullying at work. He alleges it is due to his refusal to join a trade union. The bullying has been sufficiently severe to require the employee to seek medical help and is taking medication to help him recover.Explain the grounds and case this employee might be able to bring against the organisation.6. You work for a small organisation which has never had to take formal disciplinary action against an employee before. A long-standing employee is now suspected of coming to work while under the influence of illegal drugs. Summarise what steps need to be taken and why if the organisation is to minimise the chances of having to defend the case in an employment tribunal.Assessment Criteria1.1 1.2 1.3
2.1 2.23.1 3.2 3.3
4.1 4.2 4.3
5.1 5.2 5.36.1 6.2Evidence to be produced/requiredWritten answers for each of the six activities of approximately 3300 to 3600 words in total (divided appropriately across the six activities).
You should relate academic concepts theories and professional practice to the way organisations operate in a critical and informed way and with reference to key texts articles and other publications and by using organisational examples for illustration.
All reference sources should be acknowledged correctly and a bibliography provided where appropriate (these should be excluded from the word count).Assessment Bank HR Intermediate Level Version 1.0 September 2015
Use this section for help on the assignment.
1Understand the purpose of employment regulation and the way it is enforced in practice1.1Explain the aims and objectives of employment regulationEmployment legislation provides protection for employees within employment. It ensures:Social justice in that it provides protection for the low paid (e.g. minimum wage) equality of opportunity (e.g. for all protected characteristics set out in the Equality Act 2010) and basic employment rights (e.g. statutory sickness / parental leave right not to be unfairly dismissed)Fairness in the workplacethrough ensuring consistency in terms of decisions related to recruitment selection training development pay reward employee relations and performance managementHowever employment legislation does not necessarily just provide protection rights to employees. It could be argued that employment legislation provides the following benefits for employers:Consistency in decision-making ensure higher levels of motivation and commitmentIncreased stability through formalised approaches to dismissalA level playing field all organisations are regulated which helps reduce the potential for unethical practices that give individuals & organisations an unfair advantageEnhanced performance and engagement levels of staff through providing a framework to improve performance and provide flexible / work-life balance which can energise workers and enhance engagementReduction of incidents and bad publicity (e.g. health and safety regulations preventing accidents regulations preventing child / slave labour)Wider pool of talent immigrants are more likely to want to enter a labour market that has regulatory protection.The role of the government is to balance the needs of employees (requiring regulatory protection) employers (wishing to reduce costs and bureaucracy to remain competitive) and the need of industry as a whole (Britain plc) to attract foreign direct investment and provide an environment that attracts overseas talent and retain national talent.
In essence the government is constantly balancing the needs of:the Confederation of British Industry (CBI) / Chambers of Commerce (representing business interests);the Trade Union Congress (TUC) umbrella body for trade unions (representing employees); andvarious other interested bodies & pressure groups on a particular issue (e.g. Equality and Human Rights Commission).In addition to add to the complexity the fact that a great deal of legislation emanates from EU political institutions (in which Britain is an active member) there is also need to take into account European wide pressure and action groups (e.g. ETUC).
1.2Describe the role played by the tribunal and courts system in enforcing employment lawUK employment legislation can emanate from: (1) European Union (2) British Government (through an Act of Parliament) (3) Case Law (decisions made within the court / employment tribunal system).
A great deal of the UK regulatory system is in the form of Acts (Statutes). These are enacted in Parliament following debate and consultation with key stakeholders. Acts of Parliament set out the key legislative principles and arise following discussion debate revision and voting in both the House of Commons and House of Lords. Before a proposal is voted on and enacted it is discussed and debated in the form of a bill with White Papers providing a broad overview of government policy and Green Papers setting out more details to be discussed. This bill will provide a draft format of the proposal to enable all key stakeholders (interested parties pressure groups relevant bodies committees) to discuss the content of the bill.
Following consultation a final draft of the Bill is presented to Parliament by the relevant Minister (depending on the type of employment law usually the Secretary of State / Minister for Department for Business Innovation and Skills or Department for Work and Pensions). Bills need to be approved within both the House of Commons and the House of Lords. A bill will undergo the following journey in both Houses (it can start off in either House first):First reading presentation of the bill with a date set for the second reading (no debate is undertaken at this stage).Second reading debate on the general principles (rather than the details) and potential amendments required of the Bill. Votes are taken on whether to proceed with the Bill or make amendments or revisions.Committee Stage once the Bill has passed the second reading an appointed Standing Committee reflecting representative party membership of Parliament will scrutinise the Bill in detail.Report Stage the amended draft returns to be debated further in both Houses. A further vote is undertaken at this stage with necessary amendments made as requiredThird Reading the finalised Bill is presented and voted within both Houses. Whichever House votes first it is then passed on to the other. If is not passed by both Houses or if any amendments are suggested the Bill can ping pong back and forth until agreement is finally reached. The exceptions to this rule occurs if (1) sections of the Bill were pledged within a general election manifesto; (2) if the Bill has been passed by the House of Commons twice in two successive sessions provided a full year has elapsed between its second reading in the House of Commons and its final passing; or (3) if the Bill is related to financial / taxation issues.Royal Assent and enactment the Monarch must provide formal approval (conventionally a formality). Employment related acts normally come into force in April or October.Whilst acts of Parliament are examples of primary legislation delegated legislation in the form of statutory instruments are classed as secondary legislation in that ministers can use their power to enact further additional regulations and orders (waiting 40 days to see if the issue needs to be debated) which are related to Parent Acts that have been voted within Parliament. The majority of European Union law is implemented in this way within the UK (e.g. Working Time Regulations 1998).However although the UK can still enact legislation it is within the confines of the European Union (EU) that the majority of employment and social policy legislation is enacted. As a member of the EU the UK must comply with European Union wide legislation. European Union law is enacted through a combination of regulations and directives.Although the Scottish Parliament and the Welsh and Northern Ireland Assemblies have the power to legislate in defined areas this right does not extend to employment law in Scotland or in Wales. Northern Ireland has some devolved powers within this area (e.g. discipline and dismissal).In addition to laws made within Parliament the judiciary (courts and employment tribunals) can make judgements and interpretations on the law. In fact within employment legislation there are instances of judge-made law (common law) which has evolved and continues to evolve over time. Decisions made in higher level courts are cascaded down to courts at the lowest level (e.g. employment tribunals). Once a decision on a case has been made this sets a precedent for future decisions. An example of common law is the integration of implied terms into a contract of employment (see learning outcome 2 for more details).Employees who feel that they have been treated unfairly or that contractual terms and conditions have been breached can either seek redress for:Unfair dismissal through the Employment Tribunal System. This occurs when employees* have over 2 years continuous service (in most cases) and feel that the reasons they have been dismissed are not reasonable cannot be justified or processes & procedures were not adhered to consistently and / or fairly. Two years service is not required if the dismissal is due to reasons related to: (1) trade union membership/activities; (2) pregnancy maternity paternity adoption or parent leave; (3) asserting a statutory right; (4) national minimum wage; (5) working time regulations; (6) discrimination.Wrongful dismissal through the civil courts system. This occurs when an employee has the belief that the employer has breached a contractual term or condition e.g. non-payment of contractual notice period* Those with employee shareholder status do not have the right to claim unfair dismissal (unless discriminatory or trade union reasons) redundancy right to work flexibly and right to request training.
Employment legislation is dynamic fluid and ever changing in that once decisions have been made this is more or less enacted into case law. Effective HR / L&D practitioners need to be aware of the need to constantly update their knowledge and awareness of these cases. Relying on knowledge of statute alone will not be sufficient. Parliament debates and enacts legislation however it is the interpretation of these within the courts and tribunals system which sets precedents that provide vital information and guidance for future decision-making.
The British justice system enables employees & workers to appeal against decisions. For unfair dismissal cases appeals can be made to an Employment Appeals Tribunal. Further appeals can be made to the highest appeals court in the UK known as the Supreme Court and then finally to the higher European Court known as the European Court of Justice.
1.3 Explain how cases are settled before and during formal legal proceduresThe government and employers fully recognise the need to settle cases before and during formal legal procedures. It is in the in the interest for all parties that disputes are resolved in order to enhance efficiency and productivity. All parties are encouraged to attempt to resolve cases particularly with the help of ACAS. This would be in the organisations interests in terms of saving on costs time resources and adverse publicity.In fact the Enterprise and Regulatory Reform Act 2013 stipulates that all potential employment tribunal claims must be lodged with ACAS before an employment tribunal claim is madeBefore looking at how cases can be settled it is useful firstly to determine how they arise. The employment relationship between employer and employees is governed by the law of contract. Like other forms of contract law disputes can be settled within the civil courts. The civil courts will tend to hear cases relating to a breach of contractual terms and conditions wrongful dismissal accidents at work litigation cases and restrictive covenants. However in many cases where there is legislation in place employment tribunals provide a mechanism for employees to raise unfair dismissal discrimination equal pay claims and in some cases breach of contractual issues in terms of their employment.
Employment tribunals which arose following the 1971 Industrial Relations Act aim to provide a less formal system (than the civil courts) to resolve employment disputes. However the increasing use of solicitors and legal experts has diminished some of this informality. Decisions at Employment Tribunals are made by a legally qualified judge (who may sit alone in less complex cases) and in order to provide balance and objectivity one lay member from an employee-oriented background (e.g. trade union) and one lay member from an employer-oriented background (e.g. employer association). In some cases judges can hear cases without lay members.
Employees (or ex-employees) making the claim are known as claimants whereas employers defending claims are known as respondents.
Under the Enterprise and Regulatory Reform Act 2013 the process starts with all potential employment tribunal claims lodged with ACAS before an employment tribunal claim is made. ACAS will then contact the claimant and subsequently the respondent (employer) to discuss the possibility of a settlement. If a settlement is not agreed or if the parties refuse to get involved in discussions the claimant can make the claim through an ET1 form which is submitted to the employment tribunal.
In order to make the claim the claimant needs to ensure (1) they are within strict time limits (normally within 3 months of the event occurring redundancy and equal pay is 6 months); (2) they have highlighted the reasons for making the claim; (3) they have exhausted all internal organisational procedures (e.g. undergone an appeal process); (4) they have adhered to the ACAS Code of Practice on discipline and grievance procedures (see learning outcome 6).
Using an ET3 form enables the employer (respondent) to respond to the claim (within 28 days in order to avoid a default judgement being made).
On the whole claimants are required to pay employment tribunal fees based on the complexity of the case as follows:
Type A claims: unpaid wages holiday pay and redundancy payments
Type B claims: unfair dismissal discrimination and equal pay
In addition an Employment Judge can make a deposit order if he / she thinks the claimant has provided a weak claim. Further details can be gained from the Gov UK site (clickhere).
Once the respondent completes and sends the ET3 the employment tribunal will: (1) continuously provide date(s) of the types of hearing (see below); (2) provide directions on evidence required (e.g. written witness statements letters contract of employment emails); (3) set deadline dates for both respondents and claimants to exchange documentation; (4) provide directions on numbers and bundling the documentation / evidence; (5) ask for details of representatives if any (e.g. solicitors trade union HR)Hearings directed by the employment tribunal may be: (1) case management discussion to determine requirements in order to proceed to a full hearing; (2) pre-hearing review to determine and finalise issues before the final hearing; (3) full hearing.
Settlement agreements (which replaced compromise agreements) enable employees to provide broad reasons to employers for leaving the organisation in exchange for a financial settlement without the issue being taken further at an employment tribunal. However this option is not open when the following issues are involved:automatically unfair reasons for dismissal e.g. trade union membershipdiscriminationharassmentvictimisationbreach of contract or wrongful dismissalFor the ACAS (2013) Code of practice and a guide on settlement agreements (clickhere).At the hearing the employment judge: (1) sets out the key issues; (2) asks both parties to state their case; (3) asks witnesses to take an oath or swear on a holy book before reading out their witness statement and answering questions; (4) invites parties (and / or representatives) to cross examine witnesses and each other; (5) asks for clarification on issues (along with lay members); (6) asks parties to sum up their case; (7) adjourns the meeting (can happen at various times) in order to make a decision (along with the lay members).Types of decisions (judgement) made can include:reinstatement (return back to same role);re-engagement (return back to organisation but different role);compensation; orpayment of contractual monetary value owedDifferent rights apply for employee shareholders (clickhere)
2 Know how to manage recruitment and selection activities lawfully
2.1 Identify the main principles of discrimination law in recruitment and selection and in employment
All those involved in the recruitment and selection process need to have in-depth knowledge of the legal requirements and an understanding of why these must be adhered to in terms of enhancing effectiveness of decision-making and the employer brand. A key issue within recruitment and selection is the law relating to discrimination.
Anti-discrimination legislation is now consolidated within the Equality Act 2010 (clickhere). The purpose of this legislation is to ensure that discrimination on 9 protected practices is outlawed throughout employment (including recruitment access to training pay performance etc.). The 9 protected characteristics are:agedisabilitygender reassignmentmarriage and civil partnershippregnancy and maternityracereligion or beliefsexsexual orientationThe Equality Act (2010) ensures that UK anti-discrimination law is in compliance with European Union directives. The aims of the Equality Act are to: (1) consolidate the previous statutes and common law into one single Act; (2) up-date legislation based on case law; and (3) enhance progress on equality of opportunity and outcome (e.g. pay).Types of discrimination include:Direct discrimination individual treated less favourably than another person e.g. specifying only younger workers are needed without any justificationIndirect discrimination an unnecessary requirement put in place that disproportionately discriminates against a group within one of the protected characteristics e.g. a job requirement that states an individual must have 10 years continuous experience (for a lower level role) may have a disproportionate impact in terms of age and sex (e.g. women more likely to take time away from the workplace)Associative Discrimination discrimination on the basis of an individuals association with somebody with a protected characteristic (e.g. an individual of a particular sexual orientation)Perception Discrimination discrimination due to a perception that an individual may possess one of the protected characteristics (e.g. a heterosexual individual perceived as being homosexual)The law has provided tougher enforcement in terms of the use of pre-employment questionnaires that are now outlawed unless used for the purpose of determining interview arrangements monitoring and / or undertaking positive action.
In terms of the recruitment and selection process all documentation can be viewed by the candidates and discrimination claims can be made to employment tribunals up to 3 months after the selection process.
Key areas of the recruitment and selection process where discrimination could occur include:Recruitment documentation for example job descriptions person specifications or adverts stating length of unwarranted continuous service (e.g. over 5 years for lower level skilled positions) may discriminate against women (who are more likely to take time out of the workplace) and younger workers.Applications for example websites / application forms that are not accessible to people with certain disabilities or forms / websites asking for medical / health history to aid decision-making.Shortlisting / selection assessment arrangements for example organising interview rooms that may not be accessible to all individuals.Selection decisions / questions / tests that focus on characteristics not related to the job that may stereotype or dont consider reasonable adjustments for individuals with disabilities or other needs.However legislation does permit:Positive action(but not positive discrimination) which involves trying to address imbalances with positive statements or action such as additionally advertising in publications that under-represented groups may read.Discrimination for Genuine Occupational Requirements (GOR) this occurs when a job genuinely requires a certain characteristic which could be for authenticity reasons (e.g. a traditional Japanese restaurant requiring Japanese workers) theatrical reasons (e.g. a male/female lead part) and / or cultural religious or sensitivity reasons (e.g. female health practitioners providing services for individuals of a certain faith)Asylum and Immigration(clickhere)Ensuring individuals are eligible to work in the UK. Those entitled to work in the UK include nationals of old European Economic Area (EEA) countries nationals from the EU and those who qualify under the points based system. Additional areas of discrimination to consider:Fixed term employeesFixed term contracts are made for a specific term which terminates on the completion of a task event. The legislation only applies to employees (not workers). Generally fixed term employees must be on the same terms and conditions unless there is a justifiable reason for the variation e.g. an employer can compensate a fixed-term employee by giving them a higher salary to replace a benefit such as gym membership provided to comparable permanent staff.If an employer allows a fixed-term contract to expire and the employee continues working past the specified date then the law will imply continuation of the arrangement as an open ended contract. If an employee continues working past the expiry of the fixed-term employers should issue a further written agreement which confirms the continuation of the employment and that the pre-existing terms are still applicable.Agency workersAgency workers supplied by an agency to a third party are entitled to the same basic working and employment conditions after 12 weeks of continuous employment. The legislation does not apply if (1) the hirer is a customer to the workers business (2) workers are independent contractors; (3) temporary staff recruited directly.Terms and conditions can include pay working time night work rest periods rest breaks and annual leave. Pay includes basic pay and any fee bonus commission holiday pay and vouchers of fixed monetary value.Pay not included: occupational sick pay pensions retirement payments redundancy occupational maternity paternity or adoption pay share schemes expenses advance pay or loans and some bonuses (that do not relate to the quality or quantity of work).Equal treatment applies after 12 continuous weeks. A change of role (which is substantially different) will break continuity. Anti-avoidance actions by employers are generally outlawed. In any case a six-week break will be needed before it will be necessary to re-start counting the 12 week period. Breaks of less than 6 weeks result in the clock continuing to run once the worker has resumed the role.Breaks that will not reset the 12 week clock to zero: (1) breaks of less than 6 weeks; (2) sickness (of 28 weeks or less); (3) statutory contractual leave (e.g. maternity); (4) jury service (of 28 weeks or less); (5) temporary cessation of work for a predetermined period; (6) industrial action.From day one agency workers have rights: (1) not to be unfairly treated (2) access to canteen or other facilities; (3) provision of transport services.If the agency worker believes they are not receiving equal treatment he / she can write to the agency asking for information. The agency must respond with 28 days stating relevant information. Agency workers can make complaints to employment tribunals if they feel statutory rights are being denied.
2.2 Explain how contracts of employment are establishedA contract of employment is a contract of service / apprenticeship. The contract can be verbal or written. Within contract law for there to be an employment contract there must be: (i) an unambiguous offer of employment by the employer; (ii) acceptance of the offer by the employee; (iii) consideration highlighting what both parties have to offer (e.g. wages for work); and (iv) intention to form a contract.Employees who have been employed continuously for a month are entitled to a written statement of terms and conditions within the first two months of starting. The written terms and conditions specified under the Employment Rights Act 1996 (Amended by Employment Act 2002) should include:names of the employer and employeejob title or description of the roledate of commencement (and continuous service start)remuneration details rate frequency and how calculatedworking hoursholidays and holiday pay (including bank holidays)location(s) of workabsence paypension and pension schemesnotice period for both employer and employeelength of contract if not permanentdetails of collective agreementsdetails of pay and other conditions if required to work outside the UK for 1+ monthreference of where to gain access to additional information and policies including (e.g. disciplinary and grievance; sickness and pensions; bonus or commission schemes; collective agreements)If an employer does not provide a full statement of terms and conditions within the timescale employees can make a claim to an employment tribunal while still in employment (or within 3 months after they have left employment).Given the enlargement of the types and flexibility of contract that employers can offer in order to enhance effectiveness and efficiency employment law has become increasingly more complex in determining the types of contracts that are in place.Firstly it is important to determine if there is an employment contract in place (legally known as a contract of service). Individuals who have this form of contract acquire either from day one or after a certain length of service minimum statutory rights. However subcontractors freelance works or individuals providing their services may have a contract for services. In this case individuals are not employees and may not acquire all minimum statutory rights but may gain other tax or flexible working advantages (although these workers do have some statutory protections e.g. working time minimum wage).To determining the types of contract that individuals may be on the following tests can help:Mutuality of obligation provision of work by employer and duty to undertake it by the individual (contract for services individuals can effectively pick and choose)Control by the employer in terms of how work is completed (contract for services individuals can effectively determine for themselves)Integration employees are part of organisational processes structure payroll policies (contract for services individuals may not necessarily be subject to these)Substitution employees usually do their work themselves and cannot bring in another individual to undertake the works (contract for services individuals have more flexibility on this)Different rights apply to employee shareholders (clickhere)
3 Know how to manage change and reorganisation lawfully3.1 Describe when and how contracts can be changed lawfullyThere are a number of internal and external drivers for change which include:Negative culture / behaviours lack flexibility and customer focusOrganisational structures lack of speed or flexibility too many layersRestrictive practices too much bureaucracy impacting on quick decision-makingLack of necessary skills and knowledge to meet objectives and / or client needsEnhanced competition resulting in the need to become more competitiveNew customer tastes requiring new behaviours and ways of doing thingsTechnology resulting in the streamlining of tasksThese could all be justifiable reasons for varying terms and conditions set out in employees contracts. However employers not only have to justify their decisions within law but also need to ensure they act reasonably in terms of the processes consultation and decisions they make when varying the contract of employment.Although employment legislation allows variation without agreement on non-contractual policies whenever there is a variation of a contract certain minimum statutory requirements must be complied with in order to avoid a breach of contract (and unfair or wrongful dismissal claims). Employers may state that express terms in the contract are variable but even then employers need to be careful when varying contracts ensuring adequate consultation and discussion has taken place.If the employee does not agree to a change in terms and conditions and the employer has acted reasonably (i.e. consulted considered options) and has justification for the change (i.e. customer need) the employer may unilaterally make changes to the terms and conditions. However the employer must evidence that consultation discussion and exploration of different options were reasonably explored otherwise the employee may seek recourse for a breach of contract.If no agreement is reached and / or the employer feels uncomfortable about unilaterally forcing through the changes another option open to the employer is to terminate the contract (with notice) and offer to re-employ the employee on new terms and conditions. However this has potential pitfalls in that the employee may claim breach of contract or even redundancy (see below).Variation of contractual terms and conditions need to be confirmed in writing within one month of the changes taking place. Employees cannot be forced to sign the statement to signify that they accept the variation however employers need to ensure they can prove that the employee was aware of the changes.
3.2 Explain the main requirements of redundancy lawDifferent rights apply for employee shareholders (clickhere)A redundancy situation occurs if there is:A cessation of the businessA cessation of part of the businessA cessation of the duties or role of an individualGenerally speaking when redundancy situations occur employers should ensure they fully consult with the individual(s) involved. The consultation should be meaningful and enable the employee(s) (or their representatives) to determine potential alternatives and solutions. If howevermore than 20 individuals are to be made redundant then a minimum of 30 days consultation is requiredmore than 100 individuals are to be made redundant then a minimum of 45 days consultation is requiredFor both of these situations the organisation would need to inform the Department of Business Innovation and Skills (BIS) (clickhere).Redundancy pay will depend on age current pay (or statutory limit) and length of service. Pay is calculated as follows:0.5 weeks pay for each full year of service for those under 22 years of age1 weeks pay for each full year of service for 22-41 year olds1.5 weeks pay for each full year of service for those over 41Organisations will enhance their employer brand and employee engagement if they go over and above minimum legislative requirements and explore good and best practice. Good and best practice can be determined through:Consulting and gaining feedback from employeesExamining exit interview and employee feedback dataBenchmarking practice with other organisationsExamining professional / industry websites / documentation such as the CIPD and ACASNo matter how desperate and downbeat things may be there is always potential to avoid redundancies and / or ensure the process is more effectively managed. There is a legislative requirement to explore all potential reasonable alternatives before finalising the redundancy.Good practice and legislation (i.e. Information and Consultation Regulations clickhere) requires continuous and regular communication by the employer regarding the performance of the organisation. This will ensure that employees are not surprised by a downturn in sales demand etc. which will enable the organisation to be far more proactive in preparing staff to deal with future redundancy situations.However even when redundancies are inevitable the following should be considered:Communication of a fair and transparent processContinuous updates using a range of communication channels and mediaClear plan of meetings and a consultation processAnticipation of questions askedFull staff awareness and a clearly communicated selection criteriaContinuous opportunities for individuals to provide feedback ideas and suggestionsClear feedback provided individually and collectively on these ideas and suggestionsClear process for making final arrangements and paymentsFully consulting employees (and their representatives) at the earliest opportunity in order for them to consider alternatives/solutionsConsidering a range of options may help reduce the number of redundancies and help retain talent in readiness for an upturn. Potential options that could be considered include:Redeployment across the organisationSecondments to other organisationsReducing hours permanently or temporarilyReducing number of weeks / months workedSabbaticalsCareer breaksRecruitment freezesJob sharingVoluntary redundancy being careful not to leak core talentWhere redundancies are inevitable good practice in terms of selecting individuals involves:A selection process that is clearly communicated to staffA selection process where staff have had the opportunity to give feedback or air concernsA selection process that focuses on objective and recorded data such as skills knowledge qualifications attendance conduct attitude and performance areasA selection process that does not discriminate e.g. does not take into account ill-health absences related to age / disabilityEqual opportunities for individuals to flourish within the selection process
3.3 Explain the main requirements of the law on business transfersThe Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006 involves the transfer of an undertaking (an organisation) or part of one to another undertaken. The purpose of the legislation is to ensure employees terms and conditions are protected (including continuity of service) following a transfer. Occupational pension arrangements do not apply however if the transferor operated a pension scheme the transferee has to provide a similar scheme. The transferee (organisation taking on the new employees) also takes on claims and liabilities (e.g. ongoing unfair dismissal claims) but not criminal liabilities.The regulations apply to all relevant transfers which could include:MergersTakeoversTransfer following administrationSales of businesses (involving sale of assets)Change of contractorsOutsourcingOffshoringTendering (re-tendering)Change of licensing and franchising arrangementsGift of a business through the execution of a willThe Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006 applies to relevant transfers in the following situations:Business transfers occurs when an economic entity (e.g. an organisation) retains its identity in terms of products & services provided but changes ownership. In determining if the economic entity has maintained its identity the following needs to be considered:oWill the transfer result in the same type of business being conducted?oAre the activities the same or similar?oWill the new employer take on most of the new employees?oIs the organization dealing with the same client/customer base?oHave physical assets e.g. buildings been transferred?Service provision changes occurs when a contract for services (e.g. outsourcing) is reassigned (e.g. re-tendered) or brought back in house. For it to be a transfer there would need to be the transfer of an economic entity and not just an arrangement for the supply of goods and service or a one off event.TUPE does not apply in the following circumstances:Acquisition of shares which results in a takeoverSole transfer of tangible assetsTransfer of providing goods and services onlyGenerally the transfer of contractors (e.g. cleaning security) or tendering will fall under the TUPE regulations.As previously stated if employees have the required length of service any dismissals connected with the transfer will automatically be unfair unless it is for an economic technical or organisational (ETO) reason. Examples include:Economic reasons e.g. less demand for the products or services resulting in the need to dismiss staffTechnical reasons e.g. employees do not have the skills to use new or existing technology (time for retraining needs to be considered)Organisational reasons e.g. the new employer operates at a different location and it is not practical to transfer staffThe transferor needs to ensure it conducts full and meaningful consultation with employees and their representatives. If there are no representatives these must be elected (see provisions for micro-businesses clickhere). Both the transferor and transferee are liable for up to 13 weeks pay as compensation for the lack of consulting with affected employees. The following should be provided to employees and their representatives:Confirmation of the transferReasons for the transferDate the transfer will take placeImpact on affected employeesThe measures that both transferor and transferee will undertakeTransferors are required to provide information on all employees including: age terms conditions custom and practice arrangements liabilities and other relevant information.If the transferor does not provide this information the transferee may apply to an employment tribunal.Clickherefor 2014 updates on the regulations.

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