Employment law

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=110 BGCOLOR="#666699" TEXT="#080000" bgproperties="fixed" background="07d00840erlcjm.gif"> <div> <FONT SIZE="1" COLOR="#FFFFFF" FACE="Arial Narrow" ><B>Easy Law</B></FONT><B>     |     </B><A HREF="index.htm" TARGET="_top" TITLE="Easy Law"><U><B>home</B></U></A></div> <div> <A HREF="id30.htm" TARGET="_top" TITLE="Latin"><U>Latin</U></A>   |   <A HREF="id17.htm" TARGET="_top" TITLE="Formation of contract"><U>Formation of contract</U></A>   |   <A HREF="id18.htm" TARGET="_top" TITLE="Validity of contract"><U>Validity of contract</U></A>   |   <A HREF="id19.htm" TARGET="_top" TITLE="Breach of contract"><U>Breach of contract</U></A>   |   <A HREF="id20.htm" TARGET="_top" TITLE="Impossability"><U>Impossability</U></A>   |   <A HREF="id21.htm" TARGET="_top" TITLE="Termination of coract"><U>Termination of coract</U></A>   |   <A HREF="id23.htm" TARGET="_top" TITLE="Misrepresentation"><U>Misrepresentation</U></A>   |   <A HREF="id24.htm" TARGET="_top" TITLE="Restrictive covenent"><U>Restrictive covenent</U></A>   |   <A HREF="id25.htm" TARGET="_top" TITLE="Exclusion clause"><U>Exclusion clause</U></A>   |   <A HREF="id28.htm" TARGET="_top" TITLE="Sale of goods"><U>Sale of goods</U></A>   |   <A HREF="id29.htm" TARGET="_top" TITLE="Delict"><U>Delict</U></A>   |   <A HREF="id31.htm" TARGET="_top" TITLE="Retention of title "><U>Retention of title </U></A>   |   <B>Employment law</B>   |   <A HREF="id33.htm" TARGET="_top" TITLE="Emp. 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The following is a selection of the more significant peculiarities.</div> <div> <B>Beneficial interest</B></div> <div> In Scotland, there is a big difference between agreeing to sell property and actually transferring a legally enforceable right that will stand up if, for example, the vendor becomes insolvent. A contract of sale of any property, other than goods, gives the purchaser a contractual right to have the property delivered, but gives no beneficial interest in the property. No equitable right nor implied trust is created. So, a purchaser who has paid the price will be at risk if the vendor becomes insolvent at any time before title has passed – legal title, that is, the only kind that exists in Scotland. Constitution in Scotland of legal title usually involves the registration of the purchaser’s right, eg purchase of shares being recorded in a register of members. </div> <div> This difference has been drawn into sharp focus as a result of the well known House of Lords decision in the case of <I>Sharp v Thomson</I>, as very restrictively interpreted by the Court of Session in <I>Burnett’s Trustees v Grainger</I>, but read alongside the much earlier House of Lords decision in the English case of Heritable Reversionary <I>Trust v Millar</I>. To address the difference, the practice has arisen of delivering a specific declaration of trust (with or without a power of attorney) in relation to sales of shares or businesses. </div> <div> Because the conclusion of a contract of sale does not create an equitable right in favour of the purchaser, even the delivery of a document of title such as a disposition (land conveyance) or share transfer or patent assignation will not create a trust over the property. Only delivery to the purchaser of an executed trust deed can constitute the vendor a trustee for the purchaser. </div> <div> A trust deed is stampable for shares or land but not for goodwill and intellectual property. So there will be situations where the balance of advantage is in favour of using a trust deed and others where it is not.</div> <div> <B>Restrictive covenants</B></div> <div> Often, in a company sale and purchase, the purchaser will seek to impose a number of restrictive covenants on a vendor. The Scottish courts will take a narrow view in determining whether or not undertakings of this kind are enforceable. If the courts regard a restriction as excessive, the normal approach will be to refuse enforcement altogether, rather than to provide for a shorter or more reasonable restriction. Any restriction must address a real risk to the purchaser and do no more than is necessary to protect a legitimate interest. Any such restriction must be capable of justification to the courts and must therefore be carefully drafted.</div> <div> <B>Remedies for breach of contract</B></div> <div> The prime remedy under Scots law for a purchaser is to terminate the contract, return the goods and to reclaim the price paid. A Scottish purchaser now automatically has the option to both retain the goods or property transferred and make a claim for any loss or damage suffered as a result of breach of contract. This right, known as the <I>actio quanti minoris</I>, was previously excluded, but has now been revived by s3 of the Contract (Scotland) Act 1997. Now, a vendor must specifically contract to exclude the actio if they wish to restrict a purchaser’s remedial rights.</div> <div> <B>Execution and the requirements of writing</B></div> <div> A non-Scots lawyer should be aware that Scots law has its own rules regarding signing of documents. For example, there is no concept of counterpart signing nor of signing as a deed. More detail on the Scots law rules on signing, as compared with the English law rules, can be found in the Scottish law briefing in <I>IHL104</I>, October 2002, at page 73.</div> <bR> <div> <B>INTRODUCTION TO EMPLOYMENT LAW </B></div> <div> The basis of Employment Law is the concept that each employee should have her own Contract of Employment.  The theory is that each employee enters into a legally binding contract with her employer.  The employee provides her working skills and, in return the employer pays a wage.  The Contract of Employment is at the heart of the employment relationship.</div> <bR> <div> A contract does not have to be in writing to be legally binding, and employment contracts are no different.  The Law will enforce the terms of the contract, and if the parties did not specifically agree on all the terms, then the law will work out what they intended - the implied terms - as to overtime, holiday arrangements, sick pay, discipline, can all be implied if no express agreement is reached.</div> <bR> <div> Employment Law can be categorised into two main areas, which cover the law, which affects trade unions, their relationship with their members and their relationship with employers, and the law governing the relationship between the individual employee and his employer, but I will cover the law of employment as it affects the employee.</div> <bR> <div> <B><U>THE EMPLOYMENT RIGHTS ACT 1996</U></B> applies to all employees and applied in Scotland, apart from the provisions relating to shop workers and betting shop workers working on a Sunday.  The Act contains all the employees' employment protection rights.</div> <bR> <div> <B>THE CONTRACT OF EMPLOYMENT </B></div> <div> A Contract of Employment is basically the same as any other contract and is subject to the same principles of law.  A Contract of Employment must have all the essential features of a contract, and both parties for the contract to be legally binding must reach consensus in idem or agreement on the important terms.  Neither party can unilaterally change the terms without the other party's agreement.  The parties must also have contractual capacity; they must intend to be legally bound; there must be no error affecting their agreement; the contract must be possible to carry out and not be illegal.</div> <bR> <div> <B><U>EXPRESS TERMS</U></B></div> <div> These are terms, which have been specifically agreed verbally or in writing by both parties.  <B>Under the ERA 1996 Sections 1-6,</B> within two months of starting work, the employee is entitled to a written statement of the main terms of his employment.  This statement must be kept up to date and the employee notified in writing of any changes at the earliest opportunity, or not later than one month after the change.</div> <bR> <div> <B><U>WRITTEN STATEMENT OR PARTICULARS</U></B></div> <div> <B>Section 1 of the Employment Rights Act 1996</B>, states that an employer has a statutory duty to give each employee written particulars of their employment.  It must state:</div> <div> The names of both employer/employee.</div> <div> The date the employment began</div> <div> The rate of pay-whether he is paid weekly, monthly, yearly</div> <div> Job title</div> <div> Holiday entitlement</div> <div> Pension details</div> <div> Sickness and injury</div> <div> Notice required</div> <div> Hours of work</div> <div> Discipline at work</div> <div> Complaints procedures</div> <bR> <div> This is important because it is the peg from which all the employees' rights hang.  It is the starting point in deciding whether she had been unfairly dismissed, been made redundant, It decided whether she can be forced to do overtime, How much holiday she can take, whether she can demand sick pay, the extent to which she can be disciplined by the employer.  It is the very basis of the employer/employee relationship.</div> <bR> <div> It is better for both employer/employee if the Contract of Employment is set out in writing.  Both of them then know where they stand and there can be no dispute over the terms and conditions.  Although the law does not insist that the employment contract be in writing, it encourages the employer to set out some of the terms in writing:</div> <bR> <div> Employer must provide the employee with written particulars of the main terms of the employment contract within 13 weeks of the employee starting work.  The written statement aims to be a true record of the more important terms of the contract.</div> <bR> <div> Industrial Tribunals look with disfavour on employers who do not put the terms into writing.  If there should ever be a dispute between employer/employee, the Industrial Tribunal might give the benefit of any doubt as to the terms to the employee.</div> <bR> <div> <B><U>A CODE OF PRACTICE</U></B>, which sets out the behaviour expected of the `reasonable' employer, underlines this.  An employer who fails to follow its recommendations may find that an Industrial Tribunal will regard him with disfavour.  Paragraph 62 of the Code of Practice states that each employee should be given information about:</div> <bR> <div> Requirements of his job and to whom he is directly responsible.</div> <div> Disciplinary rules and procedures.</div> <div> Trade Union arrangements.</div> <div> Promotion and training opportunities.</div> <div> Social/Welfare facilities.</div> <div> Fire Precautions/safety and health rules.</div> <bR> <div> The obvious way for employers to prove that they have informed the employee of these items is to set them out in the employee's Contract of Employment.</div> <bR> <div> <B><U>IMPLIED TERMS</U></B></div> <div> Implied terms are those terms which become part of the contract without the parties expressly mentioning them.  Apart from those implied by statute, they cannot override express terms which state the contrary.  However, they can be used to qualify express terms.  There are three types of implied terms;</div> <bR> <div> <B><U>Those implied by statute into the contract of employment</U></B></div> <div> An example is the equality clause, which under the Equal Pay Act 1970 Section 1, is inserted into all contracts under which men and women are employed in the UK and this clause, renders illegal discrimination regarding the terms of the contract.</div> <bR> <div> <B><U>Those implied by custom and practice</U></B></div> <div> To be accepted a custom must be certain, well known in that particular area and reasonable.  The scope of custom establishing an implied term has decreased in modern times.  This is due to the compulsory statutory provisions.</div> <bR> <div> <B>      3.</B>     <B><U>Terms implied by Common Law</U></B></div> <div> <B><U>Terms inferred from the facts of any given employment</U></B>.  Where there is a gap in the contract, a court may have to find that a term is implied to make sense of the existing employment relationship.</div> <bR> <div> <I><B>In Mears v Safecar Security Ltd [1982] IRLR 183, the Court of Appeal were considering a case where there was a failure in the written particulars to give details as to the payment or non payment of sick pay.  They held that a court could declare what a term should be even where there is no evidence at all as to the intention of the parties and that the court should decide what the term is on the basis of what would be reasonable and sensible in all the circumstances.  However, this decision must be questioned.  In Eagland v British Telecom [1992] IRLR 323, the Court of Appeal said that this was incorrect and the court cannot invent terms, which the parties have not agreed.</B></I></div> <bR> <div> <B><U>Terms implied by Common Law into all Contracts of Employment</U></B></div> <div> The fact remains that despite the encouragement offered by the statutory duty imposed on employers to supply employees with written particulars, in most cases the parties do not fully define the content of their relationship.  </div> <bR> <div> These implied terms are referred to as the employee's common law duties and the employer's common law duties.  Such terms will usually not have been discussed by the parties.</div> <bR> <div> <B>SOURCES OF EMPLOYMENT LAW</B></div> <div> Employment Law is derived from two main sources - Common Law and Statute.  Until the 1960s the relationship between employer and employee was regulated mainly by common law.  Since then there has been a tremendous growth in statutory protection for employees accompanied by reform of more traditional areas of legal regulation such as the law concerned with health & Safety.  The importance of common law, as a source of law, Employment Law is derived from two main sources - Common Law and Statute.  Until the 1960s the relationship between employer and employee was regulated mainly by common law.  Since then there has been a tremendous growth in statutory protection for employees accompanied by reform of more traditional areas of legal regulation such as the law concerned with health & Safety.  The importance of common law, as a source of law, must not be under estimated.  It provides a background set of rules to cover the many areas left unregulated by particular statutory provisions, egg: it is necessary to use common law to ascertain whether an employee is in fact an employee and not an independent contractor, and if he is an employee, what the terms of his contract of employment are.  Common law also plays a part in the operation and interpretation of the statutory rules, e.g.; the legislation on unfair dismissal gives a statutory definition of `dismissal' but this cannot be properly understood without reference to the basic common law rules on breach of contract.</div> <bR> <div> The main statutory sources of employment law are Acts of Parliament and statutory instruments.  However, European Community Law affects many aspects of employment law.  The impact of the Treaty of Rome, its subordinate legislation (Regulations and Directives) and the case law from the European Court of Justice is likely to increase.  European Community law has affected the law in the UK covering sex discrimination, equal pay, redundancy, health & Safety and the transfer of undertakings.   There are bound to be changes in the future.</div> <bR> <div> <B>RELATIONSHIP BETWEEN EMPLOYER, EMPLOYEE, INDEPENDENT CONTRACTOR</B></div> <div> There are two main ways in which an individual can perform work for an employer:</div> <bR> <div> <B>Contract of Service</B> between an employee and employer.</div> <div> <B>Contracts for services</B> between an employer and an independent contractor or self employed person.</div> <bR> <div> In many of the employment cases coming before the courts, the first matter to be decided by the court is whether the contract of employment is a contract <B>OF</B> service or <B>FOR</B> services.  There are four main reasons why this might be necessary:</div> <bR> <div> An employer is vicariously liable for the negligent acts of his employees if the act was done during the course of employment.  The employer is not usually responsible for the negligence of independent contractors.</div> <div> Under common law, an employee owes a number of duties to his employer and the employers owes his employee a number of duties but the employer does not owe the same duties to an independent contractor.</div> <div> Many new and important statutory rights have been conferred on employees but not on independent contractors.</div> <div> If an employee is employed under a contract of service, the employer is under a statutory duty to deduct PAYE and National Insurance Contributions from the employee's wages/salary.  An independent contractor is responsible for making his own Income Tax and National Insurance Returns.</div> <div> The distinction in law between an <B>employee</B> and an <B>independent contractor</B> is therefore a crucial one.  The statutory definition of `an employee' is given in the Employment Rights Act 1996 section 230, which defines as a person who has entered into or works or has worked under a contract of employment as opposed to a contract of services.  A contract of employment means a contract of service/apprenticeship.  Such a contract may be express or implied and where it is express it may be either oral or in writing.  The statutory definition however, may not be helpful in determining individual cases, therefore the courts have derived various tests that can assist them in making the decision.  The test that may be most appropriate in Sue's case is the <B>“Multiple Test”</B>.</div> <bR> <div> THE MULTIPLE TEST</div> <div> The Multiple test holds that a contract of service exists if:</div> <bR> <div> The employee agreed in return for remuneration to provide his own work and skill in the performance of some service for his master. <I>And</I></div> <div> The employee agreed expressly or impliedly that in the performance of the service he would be subject to the control of the other party sufficiently to make his master. <I>And</I></div> <div> The other terms of contract are consistent with it being a contract of service.</div> <bR> <div> When applying the Multiple Test the following factors are taken into consideration:</div> <bR> <div> <B><U>Payment</U></B></div> <div> How is the employee paid? Is it by wages or salary or is it by commission or fee? And who pays the employees tax and NI contributions? </div> <bR> <div> Who owns the equipment? Is it the employer or the employee, if the employer supplies the equipment and tools then it is usually a contract of service.  However this may not always be the case.  </div> <bR> <div> If there is a personal obligation to work for just one employer this is usually consistent with a contract of service. </div> <bR> <div> What labels have the parties put on their relationship, whether it be employer/employee or employer/independent contractor. </div> <bR> <div> Is there mutuality of obligation? For example if the employer is under an obligation always to provide work for the individual and the employee is under an obligation to accept the work.  This is usually a contract <B><U>of</U></B> service.  </div> <bR> <div> Is the employee engaged in business on his own account?  For example is the employee part of the employer's economic unit or operating a separate economic unit? </div> <div>   </div> <bR> <div> <B>EMPLOYMENT PROTECTION RIGHTS     </B></div> <div> There are a number of statutory rights given to employees.  These rights are not to be regarded as terms of the contract but as rights that arise from the employment relationship.  Most of these rights are to be found in the <B>Employment Rights Act 1996</B>.  An employee who is denied his statutory rights may bring proceedings against his employer in an Industrial tribunal.</div> <bR> <div> RIGHTS NOT BE UNFAIRLY DISMISSED</div> <div> <B>The Employment Rights Act 1996 Section 104, </B>gives an employee, regardless of length of service, the right not to be unfairly dismissed if the reason for the dismissal was because either the employee brought proceedings against his employer to enforce a statutory right of the employee alleged in good faith, that his employer had infringed a statutory right of the employee.  </div> <bR> <div> The statutory rights covered by this Section are those conferred by the Employment Rights Act 1996 which provides a remedy of a complaint to an Industrial Tribunal or those conferred by Sections 68, 86, 146, 168, 169 and 170 of TUL © A 1992 (deductions from pay, union activities and time off).  All provide a remedy of a complaint to an Industrial Tribunal.</div> <bR> <div> Such rules include the right not to be unfairly dismissed. Legislation concerning unfair dismissal was first introduced in the <B>Industrial Relations Act</B> and subsequently reinacted in the <B>Trade Union and Labour Relations Act 1974</B>. It is now contained within the <B>Employment Rights Act 1996</B>. However there are a limited number of reasons for dismissal on which the Employer can rely and those are detailed as follows:</div> <bR> <div> <I><B><U>Capacity or qualification</U></B></I>: This is when dismissal is related to the employee's ability to perform the job required and/or lack of qualifications, skills or aptitude.  This may be for reasons of health or any other mental or physical ability subject to the <B>Disability Discriminations Act 1995.</B> Unacceptable levels of sickness absence may also fall into this category, again subject to the same act.  However before dismissing and employee on the above basis a full review of the situation should be undertaken with further information sought for example from the employee's GP and the employee made fully aware of the gravity of his situation.</div> <bR> <div> <I><B><U>Condu</U></B></I><B><U>ct:</U></B> For cases where conduct may lead to dismissal a specific procedure must be followed: Disciplinary Procedure.  Again the employee should be aware of the procedure and the likely outcomes.</div> <bR> <div> <I><B><U>Redundancy</U></B></I><B><U>:</U></B> This is a situation in which the business ceases or there is a reduction in the business requirements to do work of a particular kind.</div> <bR> <div> <I><B><U>Statutory bar</U></B></I>: This is when an employee could not continue to do their job without contravening the law.  For example if an employee whose job entailed driving lost their licence or for any other substantial reason.</div> <bR> <div> If an employee feels that their dismissal is <I><B>unfair</B></I> they can submit a claim on an ET1 form to the Employment Tribunal Office.  On this form she will need to confirm what redress is being sought.  The options are:</div> <bR> <div> <I><B><U>Reinstatement</U></B></I><B><U>:</U></B>  This order required the employer to treat the complainant in all respects as if he had not been dismissed. The employee will go back to the job that they had previously occupied.</div> <bR> <div> <I><B><U>Re-engagement</U></B></I>: This order requires the employer to re-employ the complainant in employment comparable to that which they occupied prior to the dismissal.</div> <bR> <div> <I><B><U>Compensation</U></B></I><B><U>:</U></B> Which may consist of a basic award, compensatory award and additional award depending on the circumstances of the case.  </div> <bR> <div> In all dismissal situations the onus is on the employer to prove the reason for dismissal and if unable to prove the reason was one of the <I><B>fair reasons</B></I> the dismissal will be <I><B>unfair</B></I>.  It is therefore essential that the employer has made know company rules and procedures that are contained within the Employment Contract, Employee Handbook and Company Policies.  </div> <bR> <div> <B> RIGHTS REGARDING REDUNDANCY</B></div> <div> Under the <B>collective redundancies and transfer of under takings (protection of employment) (Amendment Regulations 1999),</B> employers must consult with appropriate representatives.  These will be recognised Trade Union representatives, or if no recognised Trade Union exists those elected by the workforce.  Redundancy as defined in the <B>Employment Rights Act 1996</B> is where:</div> <bR> <div> The employer ceases to carry on the business in which they employee was engaged.</div> <bR> <div> The business ceases to require people with the particular skills of the employee or needs fewer of them to carry out the work.</div> <bR> <div> The dismissal is for a reason no related to the individual concerned or for a number of reasons all of which are not so related, egg, reorganisation leading to fewer workers being required but those dismissals do not fall into previous categories.</div> <bR> <div> The legal minimum statutory redundancy pay is as follows: -</div> <div> Prior to 2 years service - no statutory rights.</div> <div> After 2 years service full and part-time workers - 0.5 weeks per year of service between the ages of 18-22, 1.0 weeks per year of service between 22-40, 1.5 weeks pay per year of service between 41-64.</div> <bR> <div> Under 18 or over the normal retirement age - employees are not entitled to any redundancy pay.</div> <bR> <div> The first year of employment redundancy entitlement is reduced by 1/12 for each month approaching the age of 65 that is redundancy payments will be minimum if the employee is close to retirement age.</div> <bR> <div> The statutory limit on the amount of a weeks pay is specified by the Department of Employment and as at February 01 2001 stands at £240. (This is max amount).  The ready reckoner for redundancy payment is also available.  </div> <bR> <div> The maximum service that can be taken into account is 20 years and the greatest amount payable is 30 weeks.  However more generous contractual terms may be offered at the employer's discretion.</div> <bR> <div> Redundancy pay is payable free of tax up to a limit of £30,000. Agreement to pay more generous redundancy payments should be sought from the Inland Revenue.</div> <bR> <div> NATIONAL MINIMUM WAGE</div> <bR> <div> This applies to nearly all workers and sets hourly rates which pay must not be allowed to fall.  It helps business by ensuring companies will be able to compete on the basis of quality of the goods and services they provide and not on low prices based predominantly on low rates of pay.  The rates set are based on the recommendations of the independent Low Pay Commisssion.</div> <bR> <bR> <div> <B>Main (adult) rate for workers aged 22 and over</B></div> <bR> <div> £4.20 per hour, increasing to £4.50 per hour in October 2003</div> <bR> <div> <B>Development rate for workers aged 18-21 inclusive</B></div> <bR> <div> £3.60 per hour, increasing to £3.80 per hour in October 2003</div> <div> NB: The development rate can also apply to workers aged 22 and above during their first 6 months in a new job with a new employer and who are receiving accredited training.</div> <bR> <bR> <div> RIGHTS SHOULD SHE BECOME PREGNANT</div> <div> Employees are entitled to statutory maternity rights should she become pregnant.  For example she is entitled to time off for anti-natal care, maternity leave, maternity benefit, (either maternity pay or maternity allowance) and protection against unfair treatment or dismissal.  Employers are also required by law to protect the health and safety of employees who are pregnant, have recently given birth or are breast-feeding.  Starting as soon as the employer is made aware of the pregnancy statutory maternity pay (or SMP) is payable to eligible employees who take maternity leave or leave employment because of pregnancy or childbirth.  To be eligible of SMP an employee must:</div> <bR> <div> Have been continuously employed by the company for at least 26 weeks up to the qualifying week (QW … date of leaving).</div> <bR> <div> Have average weekly earnings in the 8 weeks prior to QW not less than the National Insurance Contributions lower earning limit.</div> <bR> <div> Still be pregnant at the 11<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> week prior to the expected week of childbirth (EWC). Or have given birth by that time.</div> <bR> <div> Give the company at least 21 days notice of her intention to cease work.</div> <bR> <div> Employees with less than 26 weeks service at the 15<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> week before the EWC are not eligible for SMP.  If the employee fails to qualify for SMP the manager will provide her with a form SMP1 within 7 days of the decision being taken which details the reasons for not paying SMP to the employee.  The employee may then be eligible to claim maternity allowance from the DSS on completion of the form SMP1.  Maternity allowance is not paid through their pay roll but directly by the local benefits agency.  An employee may not qualify for statutory maternity pay if she:</div> <bR> <div> Fail to give the company at least 21 days notice of her intention to cease work.</div> <bR> <div> Fails to provide evidence of her EWC in good time, normally before the end of her 3<FONT SIZE="1" COLOR="#000000" FACE="Arial" >rd</FONT> week of her maternity pay period (MPP)</div> <bR> <div> Is outside the European Economic are during her first week of her MPP.</div> <bR> <div> Is held in legal custody at any time during the 1<FONT SIZE="1" COLOR="#000000" FACE="Arial" >st</FONT> week of the MPP.</div> <bR> <div> Does not have 26 weeks service in the qualifying week.</div> <bR> <div> An employee not entitled to statutory maternity pay may be eligible for maternity allowance.</div> <bR> <div> The maternity pay period (MPP) starts at any time from the 11th week before the EWC and can continue for up to 18 weeks if employed for 26 weeks by the 15<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> week before the EWC. </div> <bR> <div> On March 07 2001 the government announced the following changes:</div> <bR> <div> An increase in the flat rate of SMP and statutory allowance to £75 per week from April 2002 to £100 per week from April 2003.</div> <bR> <div> An extension of the MPP at the enhanced rate from 18 weeks to 26 weeks from April 2003.</div> <bR> <div> <B><U>HER ENTITLEMENT TO TIME OFF WORK</U></B></div> <div> The employee may be entitled to time off work in the following circumstances.</div> <bR> <div> Under section 52 of the <B>Employment Rights Act 1996</B> employees under notice of redundancy are entitled to time off work with pay to find other work or make arrangement for training.  This applies to employees with at least 2 years continuous service.</div> <bR> <div> Under the same act. (Section 55) a woman is entitled to time off work for anti natal care.</div> <bR> <div> Since December 15 1999 under the <B>Employment Relations Act 1999</B>, employees have the right to take a reasonable amount of time off during working hours to deal with an emergency involving a dependant. All workers are entitled to take this leave regardless of when they joined the company.  There is no limit to the amount of time that can be taken and this will depend on individual circumstances.</div> <bR> <div> Any employee who is denied statutory time off or denied payment if it is due is entitled to bring a complaint against the employer to the industrial tribunal.</div> <bR> <div> <B><U>Health and Safety</U></B></div> <div> <B>The Health and Safety at Work Act 1974</B> was brought into force to enhance the Factories Act 1961.  It placed an obligation upon all employers to ensure, as far as reasonably practicable the health, safety and welfare of their employees whilst at work, and any other personas affected by their business activities. <B>Section 2 sub section 3</B> of the Act also requires that the employers of 5 or more employees maintain in writing a safety policy.  This policy statement must include details of the organisation and arrangements for implementing the policy.</div> <bR> <div> The Health and Safety at Work Act 1974 imposes general responsibilities on Employers towards their employees.  They are obliged to ensure in as far as it is reasonably possible:</div> <bR> <div> The health safety and welfare of all employees</div> <div> <U>The provision and maintenance of plant and systems </U></div> <div> The provision of safe practices <U>and absence of risks in connection with the use, handling, storage and transport of article and substances.</U></div> <div> The provision of <U>information, instruction and training.</U></div> <div> The workplace is maintained in a safe condition.</div> <div> The provision and maintenance of a safe working environment.</div> <bR> <div> The: Health and Safety at Work Act 1974 is the enabling act, it is the Law and enables other regulations to be made under it.  There is a minefield of health and safety legislation, which is changing all the time.  The current legislation for the majority of organisation are:</div> <bR> <div> The Management of Health and Safety at Work Regulations 1999.</div> <div> Workplace (Health Safety and Welfare) Regulations 1992.</div> <div> Manual Handling Operations Regulations 1992.</div> <div> Health and Safety (Display Screen Equipment) Regulations 1992.</div> <div> Provisions and Use of Work Equipment Regulations 1998 (now includes mobile work equipment)</div> <div> Personal Protective Equipment at Work regulations 1992.</div> <div> Health and Safety (First Aid) Regulations 1998</div> <div> (ACOP) revised 1997 (look up)</div> <div> Control of Substances Hazardous to Health Regulations 1994 (COSHH)</div> <bR> <div> Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995</div> <bR> <div> The reinacted <B>Management of Health and Safety at Work Regulations 1999 (The 1999 regulations) </B>came into force on December 29 1999 and replaced the 1992 Regulations.  These new regulations clarify some changes in UK Health and Safety law to implement European Directive 89/391/EEC.  The framework of the directive is principally concerned with <U>Risk Assessment</U> management, health, surveillance, use of competent assistance, provision of <U>information and training for employees</U>.  The Regulations also consolidate earlier amendments to the 1992 regulations concerning young persons, new and expectant mothers.  The regulations fundamentally require all employers and the self-employed to carry out 2 distinct tasks:</div> <bR> <div> To carry out a suitable and sufficient assessment of risks to employees or other persons that may be affected by their undertaking and elimintae or reduce the risks to the lowest level reasonably possible.</div> <div> To record significant findings of risk assessments where there are five or more employees.</div> <bR> <div> <I>The Employers Liability (defective equipment) Act 1969 states that “if an employee is injured from using unsafe equipment and this is due to the fault of the third party  then the injury will be deemed due to the employer's negligence</I>.  The employer however may then bring and action against the 3<FONT SIZE="1" COLOR="#000000" FACE="Arial" >rd</FONT> party for the damages that have been paid to the employee (Bradford v Robinson Retails 1967 1WLR337.</div> <bR> <div> <B>The Race Relations Act 1976 section 3</B> prohibits discrimination against any person on the grounds of colour, race, nationality or ethnic origin. Discrimination may be direct or indirect; Section 1 subsection 1a  (<I>S1(1)(a)</I>) of the Act defines discrimination as “less favourable treatment of racial groups (direct discrimination) indirect discrimination on the other hand occurs where a requirement or condition is applied that is unjustified or to the detriment of others.”   The Race Relations Act 1976 also states that it is unlawful to discriminate against a person on grounds of race in terms of employment.  </div> <bR> <div> Section 4 of the Act states that: “<I>it shall be unlawful before a person who is in employment to discriminate against him on racial grounds, in respect of arrangements made for the purpose of determining who shall be employed”.</I></div> <bR> <div> If an employee feels that they have been a victim of unlawful discrimination they may present their complaints to an industrial tribunal within 3 months of the act committed.  Furthermore if an employee is found to have been refused employment on racial grounds an industrial tribunal is empowered to make the following orders:</div> <div> An order declaring the rights of the parties involved.</div> <div> An order for the payment of compensation, which may also include payment for injury to feelings.  However compensation is not payable in respect of <U>unintentional</U> racial discrimination.</div> <div> Recommendations that the employer take remedial action within a specified time to remove or reduce the determinant suffered by the complainant.</div> <bR> <div> An Employee should contact the Commission for Racial Equality (CRE) who will be able to advise her on her rights under the terms of the Race Relations Act.  In appropriate circumstances the CRE may also be able to assist Linda financially in pursuing a case of racial discrimination.</div> <bR> <bR> <div> <B>The Equal Pay Act 1970 </B>which came into force in 1975 to coincide with the Sex Discrimination Act.  The purpose of the Equal Pay Act is to eliminate discrimination between men and women in pay and other contractual terms by ensuring that every term in one contract is not less favourable than the equivalent term in another contract.  The Act applies to both men and women.  Under the terms of the Act an individual may claim equal pay with a member of the opposite sex on the grounds of:</div> <bR> <div> Like work such as work of the same or a broadly similar nature to that of the other person. </div> <div> Work that is rated equivalent as the result of some form of job evaluation</div> <bR> <div> Furthermore under European Community Law the Act as amended by the Equal Pay (Amendments) Regulations 1983 seeks to satisfy the requirements of article 119 of the Treaty of Rome and the Equal Pay Directive 75/117/EEC.  Under article 119 member states of the European Community are required to ensure the application of the principle that men and woman should receive equal pay for equal work. (Treaty of Rome)</div> <bR> <div> Under the Equal Pay Act as amended by the 1983 Regulations both men and womens contracts may be modified so that the terms are no less favourable than their colleagues are if they can prove that:</div> <div> They are engaged in <B><U>like work</U></B> to that done by their higher paid colleagues.</div> <div> That their work is <B><U>rated equivalent</U></B> to that done by their colleagues.</div> <div> That their work is of <B><U>equal value</U></B> to that of their colleagues.</div> <bR> <div> Benveniste v. University of Southampton (1989) IRLR122.</div> <bR> <div> Should the employers fail to modify the contracts an Equal Pay Claim may be presented to an individual tribunal.  If the tribunal is satisfied that the claim is valid they have the power to make an order declaring the applicants right and also to award up to 2 years arrears of pay.  </div> <bR> <div> <B>The Sex Discrimination Act 1975</B> amended in 1986 applies to two kinds of discrimination: direct and indirect:</div> <bR> <div> <B>Direct Discrimination</B>: by treating someone unfairly because of his or her sex or marital situation.</div> <bR> <div> <B>Indirect Discrimination</B>: by setting unjustifiable conditions that appear to apply to everyone but in fact discriminate against one sex.</div> <bR> <div> <B>The Sex Discrimination Act 1975</B> makes it unlawful to discriminate against either men or women because of their sex in relation to employment training or education etc.</div> <bR> <div> <B>The European directive 76/207/EEC</B> also provides for equal treatment as regards access to employment promotion and working conditions however, in certain circumstances there may be exceptions to this rule.   <B>section 7 of 1975 Act</B> states that “it is not unlawful for an employer to discriminate in his recruitment arrangements or when selecting a person for promotion transfer or training if being a man or a woman is a genuine occupational qualification for the job.”</div> <bR> <div> <B>Section 7,</B> provides for the exceptional circumstances where being of a particular sex is considered to be a genuine occupational qualification:</div> <bR> <div> Where a job needs to be held by a person of a particular sex in order to preserve decency or privacy, a person of a particular sex may be required for employment for example, in a private home where the job involves a degree of physical or social contact with a member of the household or knowledge of intimate details of such persons life.</div> <bR> <div> Where the employee is required to “live in” there is only single sex sleeping accommodation and bathroom facilities and it is unreasonable to expect the employer to provide separate accommodation for members of the opposite sex.</div> <bR> <div> The job is a single sex establishment for persons requiring special care, attention or supervision and it a reasonable that the job is held by a person of that sex.</div> <bR> <div> The job involves providing individuals with personal services, promoting their welfare for education and such services can be most effectively provided by a person of a particular sex, for example, social work posts or particular guidance posts in schools.</div> <bR> <div> <B>ARMED FORCES/GAY RIGHTS</B></div> <div> The ban on gays and lesbians in the military was basically a by product of the 1864 Sexual Offences Act which outlawed sex between men, even if it was consensual and in private. This law applied to all citizens of the United Kingdom until the Sexual Offences Act 1967 was passed which decriminalised consensual sex between two men in private. The armed forces were exempted from the new law, however, and gay sex therefore remained illegal for servicemen. In that time an average of 10 service men per year were sent to prison, often for as long as 18 months. The prison sentence, of course, followed a perhaps more painful investigation in which their private lives were revealed to friends and family members.</div> <bR> <div> In 1991 the Armed Forces Select Committee heard evidence from Stonewall about the portion of lesbians and gay men in the armed services; as a result the Committee recommended decriminalising homosexual sex. This legislation was introduced in the Criminal Justice and Public Order Act of 1994. Homosexual acts were then legalised in the armed forces where they would be legal in civilian life (i.e., private acts between consenting parties of 18 or over).</div> <bR> <div> However this change did not alter Ministry of Defence policy which maintained that "homosexuality is incompatible with military service". Lesbians, gay men and bisexuals still faced automatic dismissal, known as "administrative discharge", if they are discovered. This means that they lost their careers, friends, homes and often a significant part of their pension entitlements. </div> <bR> <div> In September 1999 the European Court of Human Rights ruled in the cases of Duncan Lustig-Prean, John Beckett, Jeanette Smith and Graeme Grady v. the United Kingdon that Britain's armed forces gay ban was unlawful. It was thought that any official end to the ban would not come till a review of the Armed Forces Bill in 2001. However, on 12 January 2000, in a statement by the Secretary of State for Defence, Geoff Hoon, in the House of Commons, the ban on non-heterosexuals from serving in the military was officially lifted.</div> <bR> <div> HUMAN RIGHTS ACT 1998</div> <div> The Human Rights Act 1998 came into force on 2 October 2000.  It have bee part of Scottish law since devolution.  The Legislation has been brought about by the European Convention on Human Rights, which aims to protect rights to life and liberty.  This has an impact on everyone when it comes down to matters of privacy and freedom of expression.  </div> <bR> <bR> <bR> </td> </tr></table></body>