Watershed HR has grown out of Collinson Grant's employment and HR business, and is our brand for our Employment Law services.
Collinson Grant started work in the early 1970s. ‘Employment law’ only truly became a discrete subject with any critical mass in 1971, when the Industrial Relations Act was passed. So we have grown up with it. The law concerning formal relationships and day-to-day behaviour of employees has been a constant consideration in our work supporting clients. And that means we have seen the shape and content of the subject evolve and we understand how best to work with it. It also goes some way to explaining why, by first publishing The Line Manager’s Employment Law as far back as 1978, we wanted to emphasise to managers the relevance of employment law to their day-to-day responsibilities.
The legal aspects of employment are, thankfully, not the most important elements in relationships at work, which are also shaped by custom, responsibility and mutual expectation. Traditionally, the law dealt rather with the exceptional situation in which these normal affiliations and behaviours were disrupted – even today, dialogue and interaction in the workplace rarely turn on the nuances of the latest statute or judicial pronouncement. But things have clearly changed.
The extended scope and influence of employment law
Legislation, often supported by codes of practice, has greatly increased the number of rights and duties associated with employment and has affected what each party expects of the relationship. Consequently, the law has moved from the wings and is now situated nearer the centre of the stage. Workers may challenge managers’ decisions, and may apply to the employment tribunal for redress. Of course, notwithstanding at least temporary preservation in 'the Great Repeal' legislation, post-Brexit the ultimate survival or ongoing judicial treatment of those laws derived from European Union membership must be open to speculation. However, overall, most employment rights are here to stay. Meanwhile, the law on the responsibilities of trade unions, their officers and their actions in support of their members’ interests often changes under political pressure. The relative importance of the two basic strands, individual and collective, as well as that of particular subjects within them, alters. But it cannot be seriously doubted that the overall significance of employment law has grown.
The direct financial cost of infringing legal standards can be overestimated: perceptions are fuelled by reports in the media of atypical awards of compensation in some high-profile cases. But, even in more commonplace situations, awards can still be high. And the calculation of that particular exposure does not encompass the frequently irrecoverable legal fees, the ‘opportunity cost’ of managers’ lost time, possible damage to employee relations and adverse publicity in the wider community.
Know the law – constraints and opportunities
Line managers must acquire a working knowledge of the basic contours of employment law to avoid elementary errors that might impair their credibility or harm the business. They should be able to recognise when specialist advice is necessary. And they might also conclude that the law’s standards can help improve motivation and performance by providing a foundation for better communication, greater consistency and a sense of participation.
This app, in addition to the book, the successor to The Line Manager’s Employment Law, which ran for 25 editions over 30 years, seeks to continue providing that required understanding. Although still clearly based on its predecessor, it aims to give the law more life. So it adds detail, essential points, tips on practical things to do, and illustrations of common errors or misconceptions. Regardless of when each edition goes to print, there are always legislative changes lined up for the coming few years but not yet in force. So, we use a Change Alert marker to let the reader know what they should be watching or preparing for. To the extent these rely on political pronouncements, they have often been difficult to gauge and present. This is particularly true as we write this for publication in June 2019 in a state of uncertainty over Brexit, and Change Alerts are based on the current Government's announces plans at the time if writing, which of course may be subject to change.
The text covers the main provisions of employment law in England, Wales and Scotland. In Northern Ireland the substantive law can be different in some aspects, so seek more guidance if you need it. The law described in this app generally covers only people working in the UK. But the House of Lords (before being superseded by the Supreme Court) decided that some of the main statutory protections can also be extended to employees of UK entities working overseas. Again, professional advice should be sought on the specific situation.
Employment law – some introductory concepts
Scope and foundations
Our employment law is made up of legislation (EU Regulations and Directives (currently subject to Brexit) or UK Acts and Regulations) and decisions of the courts (case law). These two sources establish the rules that regulate the relationship between an employer and an employee. Sometimes the law makes a distinction between an ‘employee’ and a ‘worker’. In either case, the relationship is based on the existence of a contract.
There are different types of contract. These are discussed in more detail later. Generally, a contract is based on freely-given agreement. So an employer has the freedom to decide with whom to make a contract and with whom not to. There are some restrictions on this freedom, most of which are in the laws against discrimination. The detailed contents, or ‘terms and conditions’, of a contract between an employer and employee or worker record the agreed rights and duties, the provisions for terminating the contract and, sometimes, responsibilities (such as confidentiality) after termination.
Although it is assumed that both parties enter into the contract voluntarily, legislation establishes minimum rights and standards that apply to the relationship. These override even a contract that does not mention them, or says that some or all of them do not apply, or specifies inferior provisions. Most of the standards described in this app are the minimum ones prescribed by legislation. This app is not overlain with statutory references and sources, of which there are many. However, the main pieces of current UK employment legislation, which have all been amended to a greater or lesser extent since their introduction, are:
◉ Employment Rights Act 1996
◉ Equality Act 2010
◉ Trade Union and Labour Relations (Consolidation) Act 1992
◉ Transfer of Undertakings (Protection of Employment) Regulations 2006
◉ National Minimum Wage Act 1998
◉ Working Time Regulations 1998
So, contractual provisions will only be effective if they at least match, or improve on, any overlapping statutory rules. They will be ineffective, and unenforceable, if they attempt to lessen or avoid the statutory provisions. If a subject is not directly regulated by legislation, the parties (although usually the employer) may specify whatever terms they wish, provided that this does not result in an agreement to do something illegal.
How are employment rights and duties enforced?
Statutory rights and duties are, with a few exceptions, enforced through the employment tribunal system. Employment tribunals can also deal with contractual claims, which are not established by legislation, of a certain type and maximum value. Otherwise, contractual claims are heard by the County Court or High Court.