The individual's part of the deal
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Brian Chalmers-Hunt explains ne provision of e employment protection laws currently in force, and shows ne individual how his rights stand
THE EMPLOYMENT Protection (Consolidation) Act 1978, which came into operation on November 1, 1978 brought together under one law the provisions on individual employment rights previously conained in the following acts: Redundancy Payments Act 1965; Contracts of Employment Act 1972; Trade Unions and .abour Relations Acts 1974 and 1976; Employment Protection Act 1975.
In no way does it alter the rights conferred by those acts; it was purely a consolidation measure.
The last act is a massive item c-f legislation. It is a document of some 170 pages containing 115 clauses and 16 schedules.
is the duty of every employer to understand the working of the Act and arty questions about the implications of its provisionsseoul.d be directed to the regio
n I office of the Advisory, Conciliation and Arbitration Ser ✓ es (ACAS).
ntract of Employment
A contract of employment II exist as soon as an employee p4oves his or her acceptance of ai employer's terms and conditiOns of employment by starting wOrk. Both the employee and employer are bound by the terms offered and agreed.
Under the Employment Prote0on Act, the employer must gi e to the employee within 13 w eks a written statement itemisi g the main terms of employm nt, plus an additional note on di ciplinary and grievance proc e res. A written contract of e ployment between the two pa ies will normally state all the te ms and conditions which ha e been agreed.
he written statement must co tam n particulars, or it must st te in what documents — w ich must be reasonably ac essible — this information ma be examined.
he statement must give the na es of the employee and em loyer, the date when the em loyment began and state wh ther any employment with a pr ious employer counts as pa of the employee's contin ous period of employment, an , if so, the date in which the oer.od of continuous employ-netit began.
he statement must also in31u el —t e scale or rate of remunera ti or the method of calcula
ti
ervals of at which remunera on is paid; —a y terms and conditions r ating to hours of work; —any terms and conditions relating to holidays, including public holidays and holiday pay; incapacity for work due to sickness or injury, including any provisions for sick pay; pensions and pension schemes; — length of notice of termination or if the contract is for a fixed term, the date when the contract expires; — job title; — specify any disciplinary rules and name or title of person who deals with disputes; — state whether a contractingout certificate under the Social Security Pensions Act 1975 is in force for the employment in respect of which the written statement is being issued.
If there is a change in the terms, the employer must inform the employee about it within one month of its introduction by means of a further written statement covering that change, unless the employer's obligation is met by keeping reference documents up to date.
A new statement is not required if the employer's identity is retained but the name is changed, or if a change of the identity of the employer does. not breach the continuity of employment. Provided that there is no other chance in the
terms of employment, a new employer need only notify the employee in writing, within one month, of the change in name or identity of the employer, specifying the date on which the employee's continuous period of employment began.
Continuity of employment is preserved if: — a trade or business or undertaking is transferred to another employer.
— by or under an Act of Parliament one corporate body takes men from another as the employer.
— the employer dies and his or her personal representatives or trustees keep the employee on in employment.
—there is a change in the partners, personal representatives or trustees who employ the employee.
—the employee moves from one employer to another where at the time of the move the two employers are associated employers.
If a change of employer occurs and the notification is not supplied or if any dispute arises as to whether previous employment should be treated as continuous with employment after the change, the employee may require the matter to be referred! to an Industrial Tribunal to de
Redundancies
The Employment Protect Act requires employers to c sult appropriate recognis trade unions whenever ti' prepare to make even a sin employee redundant.
The provisions apply recognised independent tra unions and employees in kinds of employment but w certain exceptions not usua likely to be encountered in t transport industry. Unlike t redundancy payments pro. sions, they apply regardless how long employees ha worked for their employer or i how many hours a week th were employed.
If an employee is to be mai redundant, the employer mi., begin consultation with .0 union at the earliest oppc tunity. In particular, if it is pr posed to make ten or mo employees redundant within relatively short period, consL tation must begin not later th the specified minimum time b fore the first dismissal take effect. The period can vary be ween 60 and 90 days deper ding on the number employees.
The trade union will nee reasonably full informatio about the employer's proposal to be able to take a useful an constructive .part in the discu! sions. This will include:
—the reason for the proposals; —the numbers and description of employees it is proposed t dismiss as redundant; —the total number c employees of any such dE scription employed by th employer at the establish ment in question; —the proposed method c selecting the employees wh may be dismissed; —and the proposed method carrying out the dismissal taking account of any agree procedure, including th period over which the di; missals are to take effect ed the trade unions of the s for redundancies and them the necessary inferon, it is up to their :sentatives to reply to the loyer. If they reply the layer must consider any ts that they make and reply hem giving reasons for Ming any of them. If the esentatives do not reply, is no further action that the iloyer need take.
here may be special umstances where it is not ;onably practicable for an Dloyer to meet fully the iirements for minimum conation periods, disclosure of mation, or the manner of ling with the unions resentations. In such umstances, employers must all they can reasonably be )ected to do to meet the uirements.
an appropriate trade union y complain to an industrial iunal that an employer has met the requirements to isult about proposed redunidles. A complaint can be r;le either before a dismissal :es effect or within three rnths after it has taken effect, t if a tribunal considers that it is not reasonably practicable the union to make its corn)int in time, it can allow a ■ ger period.
Hearings are conducted in-malty and it is not necessary have a solicitor, but there is objection to doing so. Both irties should attend and may aim travelling and other exrinses, including of appropriate ss of earnings.
Employees and trade unions ay also get advice from a conliation officer without formal vlication having been made. ny information given will be eated as confidential and it lay not be divulged at the ibunal without the consent of le person who gave it.
A protective award will .iquire the employer to pay the mployees covered by an award leir normal week's pay for a pecified period. called the proacted period. To be covered by n award, employees must bepng to a group specified in the ward, they must be employees horn the employer plans to, or as already, dismissed on 'rounds of redundancy and they nust be employees in whose ase the employer has failed to omply with the consultation equirements.
The protected period will bein with the date on which the irst dismissal takes effect or the late of the tribunal award
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length of the period will be determined by the tribunal, but may not exceed the minimum time laid down for consultation.
Before an employer can make any payments under a protective award to an employee, any unemployment benefit and supplementary benefit paid to the employee for any part of the period covered by the award must be deducted from the award by the employer and repaid to the Department of Employment.
Employees who are still employed will be paid under a protective award only when they would be entitled to payment under their contract of employment or under their statutory rights during a period of notice. For this purpose the whole remaining part of their employment is treated as if it were a statutory period of notice.
This means that employees who go on strike, or are absent from work without leave and without good reason, or are granted leave at their own request, or have time off work under certain provisions of the Employment Protection (Consolidation) Act, will not be entitled to payment.
Employees who are unfairly dismissed for a reason other than redundancy or who give up their job during the protected period without good reason will, however, lose their right to payment for the rest of the protected period.
An employer may offer an employee re-engagement either in the old job or in different but apparently suitable work, before the end of the protected period. An employee who refuses such an offer without good reason will lose the right to payment for the rest of the protected period.
Employees are also required to notify the Secretary of State for Employment if they are proposing to make ten or more workers redundant at one establishment within a relatively short period.
Trade union membership
Employees, with some ex ceptions, have the right to have no action — short of dismissal — taken against them as in dividuals by their employers, for any of the following purposes: —to prevent or deter them from joining or belonging to an independent trade union, or to penalise them for so doing;
—to prevent or deter them from taking part in the activities of an independent trade union at any appropriate time, or to npnalicp thpm for so doing;
—to compel them to join, or belong to, a union which is not independent; —to compel them to join, or belong to any union, if they genuinely object on religious belief to belonging to any trade union whatsoever.
Actions short of dismissal which might be held to infringe an employee's rights under this provision include such matters as disciplinary measures, docking pay or benefits, unjust refusal of promotion, training, or job transfer, and threats of dismissal or redundancy.
Action which infringes an employee's rights does not necessarily have to be taken by' the employer personally. The action of others, for example a manager or foreman, acting on the employer's behalf (even if not specifically authorised to do so) may also be held to infringe an employee's rights; in which case the employer would be answerable for such actions.
Gurantee payments
The Act specifies that employees who are not provided with work throughout a day during which they would normally be required to work under their contracts of employment, and because of a reduction in the requirements of the employer's business for work of the kind which the employees are employed to do, or any other occurrence affecting the normal working of the business in relation to this type of work, are entitled to be paid a guarantee payment by their employer.
The Act provides for guarantee payments to be made in respect of each complete working day lost. They are not required to be made in respect of a day in which some work is provided, even if that work is provided outside normal working hours.
The Act defines day as the period of 24 hours from midnight to midnight. Where a period of employment normally extends over midnight, for example on shift-work, it is treated as falling wholly on the first day if more hours are normally worked on the first day then the second, otherwise it is treated as falling wholly on the second day.
Finally the Act does not affect the question of whether or not an employer is entitled to put an employee on short time or temporary lay-off which is unpaid or at lower-than-average levels of pay. This is determined by individual contracts of employment.
Employment and pay
Most employees are entitled to the following rights while in employment: —guarantee pay; — remuneration on medical suspension; —maternity pay and reinstatement; — time off to look for work or arrange training; —notice of termination or dismissal and written statement giving reasons; — redundancy payment; —not to be unfairly dismissed, or dismissed for medical suspension or, subject to certain conditions, for pregnancy; —compensation if unfairly dismissed; —additional compensation if an employer refuses to comply with an order for reinstatement or re-engagement.
To qualify for each of these rights, an employee must have been continuously employed for the period stipulated for the right. Further monetary awards and payments arising from the rights are calculated in many instances on the basis of a week's pay.
Unfair dismissal
Dismissal is ,defined as the termination of employment by: —the employer, with br without notice; — the employee's resignation, with or without notice, where the employer's conduct shows an intention not to be bound by the contract of employment; — the expiry of a fixed-term contract without its renewal; — the employer's refusal to allow an employee to exercise her legal right to return to work after the birth of her baby.
If, after dismissal by the employer, an employee gives notice, in writing or otherwise, to terminate the contract of employment at an earlier date than required by the employer, the "effective date of termination" will be the date the employee's own notice, rather than the employer's notice, takes effect.
Apart from those people who are not eligible to complain ol unfair dismissal, for instance those who have not completec the required number of weeks co1 continuous employment, al employees have the right tc complain to an industrial tribu nal. A complaint to an industria tribunal must be made by thE individual who was dismissed but if the employee dies, a per sonal representative of the de ceased can make the applicatior to the tribunal or continue pro ceedings already started.