CIPD Level 5
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1.1 Explain the aims and objectives of employment regulation.

  1. Fairness

Employment regulation plays a vital role in upholding fairness at work. Employment regulation ensures that fairness is practiced throughout an organization’s operations starting from the recruitment and selection, during training or coaching, when issuing compensation, carrying out performance assessment, and during employee relations. Another way through which employment regulation fosters fairness at work is by providing employees with a legal avenue that they can use to report or take legal action in case they feel they are being treated unfairly at work.

  1. Social Justice

Employment regulation is one of the few ways of ensuring there is social justice in the workplace. It does this by putting measures in place that guarantees there is equal opportunity in the workplace, presence of basic rights, compels employers to create fair working conditions, curbs industrial unrest, and making sure that all employees are given fair compensation and wages for the work they do.

  1. Employee Protection

Employee protection is one of the most important functions of employment regulation. It is put in place to make sure that employers meet all the legal requirements provided for in the law regarding workers and working conditions. Further, employment regulation protects employees since it ensures that employees get compensated fairly, receive their pay on time, and their contractual agreements fair and humane.

1.2 Describe the role played by the tribunal and courts system in enforcing employment law. 

The employment tribunal handles all employment claims and grievances including unfair dismissal, discrimination in the workplace, equal pay, unfair treatment, redundancy, salary deductions, maternity, and paternity rights. Any worker who feels like they have not been treated fairly at work or that their contracts or contractual terms have been breached are allowed to pursue all legal means to redress or to seek different levels of compensation.

Before submitting any case to the employment tribunal, there are several things that the affected party must submit. The first requirement is to avail and submit the ET1 Claim Form. A copy of the ET1 Claim Form will be forwarded to the petitioner’s employer. Upon receipt, the employer can either respond or defend the claims. The employer’s response is submitted through the ET3 Response Form. The UK justice system allows both the employee and the employer to appeal the decision of the Employment Tribunal. All appeals are forwarded to the Employment Appeal Tribunal which listens to these cases. In case the aggrieved parties feel that the matter is not adequately resolved, further appeals can be drafted and forwarded to the UK’s highest Court of Appeal. If the matter is not adequately resolved, the matter can then be forwarded to the Supreme Court. If the case is not resolved by the Supreme Court there is still a provision to forward it to the Court of Justice of the European Union (CJEU) (Taylor, 2021).

1.3 Explain how cases can be settled before or during formal legal procedures. 

Mediation, arbitration, and conciliation are some of the common ways of settling cases outside legal proceedings. Mediation, as an alternative dispute resolution approach, utilizes a neutral party whose aim is to assist the conflicting parties to work their way towards constructive negotiations thus assisting them to reach a mutually acceptable resolution. The person appointed to be a mediator works collaboratively with all the affected parties to establish the source of their conflicts and align their priorities. Advantage of mediation: it’s confidential, it’s a relatively quick and inexpensive process. Key disadvantages include the fact that parties can withdraw at any moment and the meditation does not always result in an agreement (ACAS, 2021).

Arbitration, as an alternative dispute resolution approach, involves the use of an extra individual or a tribunal that has been approved by all the affected parties to help them to come up with a decision that has been agreed on by all the affected parties to end an existing dispute (ACAS, 2021).

ACAS offers three main services, conciliation, arbitration, and mediation. Its roles include providing confidential and impartial advice on trade union disputes, assisting employers and trade unions to draw up work agreements or contracts, assist organizations to resolve workplace disputes, offer training on employment matters, and occasionally can be used to solve employment tribunals (ACAS, 2021).

2.1 Identify the main principles of discrimination law during recruitment, selection and employment.

Discrimination can be classified into three categories, direct discrimination, indirect discrimination, and associative discrimination. Direct discrimination, is when a person or a group of people are subjected to poor treatment because they are linked to specific protected characteristics. Indirect discrimination comes about if there is a policy that has been put in place that is employed the same way for everyone else, but the same policy disadvantages one person or a group of people linked to specific protected characteristics. Associative discrimination takes place when an individual or a group of people faces discrimination based on the association they share or have with another person, or a group of people belonging linked to specific protected characteristics (Popat, 2019).

The main principles in discrimination law pertaining to recruitment selection and employments per The Equality Act 2010 it is unlawful for organizations to show prejudice against job applicants because they possess the protected characteristic; withhold a job offer to an applicant because they possess protected characteristics; developing appropriate criteria and conditions when setting up their job requirements; to make rational alterations to the recruitment process and make sure they have capacity for applicants with any form of disability. The Equality Act 2010 also makes it illegal for employers to ask potential job aspirants questions concerning their health status or disability before extending a job offer. The law allows employers to create targeted recruitment when their aim is to focus on people who are disadvantaged or under-represented; to take specified positive action when dealing with the process of recruitment and promotion; to function as an exemption to the general principle of equality but only in limited circumstances. It is unlawful to give instructions to any employment agency urging them to discriminate against potential job applicants with protected rights (GOV.UK, 2021).

2.2 Explain how contracts of employment are established.

An employment contract is made between two parties, the employer, and the employee. The following are all 4 elements of a valid contract:

  1. Offer – could be communicated either in writing or verbally. It can also be either conditional or unconditional.
  2. Acceptance – it’s the act of accepting an offer. All the parties become legally bound once the aspirant accepts the offer. After this, both parties are legally bound by the contract.
  3. Consideration – highlights what both parties bring to the table. What both parties have to offer.
  4. Intention – create legal relations

Express terms are terms that are explicitly mentioned or given orally in writing. Conversely, implied terms are not explicitly agreed, drafted, or even included in the contract (Maguire, 2015). The mandatory express terms of a contract must contain the name of the organization and name of employee, the job title, commencement date, place of work, basic wage, details of the salary, working hours, contract dates, job title, description of duties, pension arrangements.

3.1 Describe when and how contracts can be changed lawfully.

Company reorganization can be set off for various reasons. The primary grounds for reorganization and restructuring of a company includes; fixing a broken system, safeguarding the organisation from the effects of a recession, during the merging or acquisition of another company, relocating the company, expanding the company into new markets, creating new opportunities in the organisation, replacing employees in key positions, changing of the company’s customer base, or in the event of downsizing the company (Suff and Ayling, 2020).

Flexibility clauses can be defined as the terms in a contract that grants the employer the power to change certain employment terms in the employee’s contracts. In spite of this power, alterations on the employee’s contracts must be lawful and reasonable. They are a fundamental part of any lawful contractual amendments and are deliberately added to assist the employers to review employment terms in the event there is a need for company restructuring or reorganization (Suff and Ayling, 2020).

There are also alternative ways employers can make contractual changes in the absence of a flexibility clause. This can be done through a mutual agreement with their employees, unilaterally introducing a change to the contract, or by dismissing the afflicted employees and awarding them a new contract. The primary steps include establishing potential grounds for making the changes, accessing the current terms, acquiring written consent. In the event the employees refuse to consent, the organization can take steps such as direct dismissal and re-engagement. Contractual amendments bear potential effects including reduced productivity, possible lawsuits in employment tribunals, loss of morale, and unmotivated staff (Suff and Ayling, 2020).

3.2 Explain the main requirements of redundancy law.

Some of the laws relating to redundancy include Employment Rights Act 1996, Trade Union, and Labour Relations Consolidation Act 1992. Redundancy can be described as a special type of dismissal that can take place when an employer wants to cut down the size of its workforce. Under UK law, an employee can be dismissed for redundancy if the employer has closed, or intends to close, their business or when an employee’s ability to carry out a certain task has diminished or is expected to diminish. The main objective of these laws is to make sure there is a fair and sensitive treatment for all the employees who are in the process of losing their jobs (CIPD, 2018).

Employers are required to properly inform employees of the exact reason for the redundancy.  contact all the affected parties, the criteria used to select the parties being affected by the redundancy, and the payment calculations methods. In the UK employees are liable for redundancy rights after 2 years of continued service with the same employer (CIPD, 2018).

The following steps outline these steps that need to be followed:

Step 1: Preparation – employer evaluates whether the redundancy is necessary before beginning and committing to the entire process

Step 2: Consultation – involves consulting employees who will be affected. Trade unions are also notified at this stage.

Step 3: Selection – evaluation of all the workers who have been identified as being at a high risk of redundancy.

Step 4: Notice of redundancy and Appeals – entails informing all the employees affected, by giving them proper notification confirming their dismissal.  Issuing formal notice.

Step 5: Redundancy Pay – the employer should have a written record explaining to the workers how their redundancy payment was calculated (ACAS, 2021).

The consequences for the organisation of not following these steps include facing lawsuits, negative reputation, low morale, loss of productivity, and immense staff turnover (ACAS, 2021).

3.3 Explain the main requirements of the law on business transfers.

TUPE 2006 was ratified to assist in the regulation and the transfer of undertakings. The objective of this legislation is to make sure that the terms and conditions of an employee are looked after during the transition period. As a result, it shields employees from the negative effects of the transition. Additionally, it also protects an employee’s employment contracts and all the contractual terms of their employment. TUPE prevents employees from being dismissed as part of the agreement. TUPE regulations classify the form of dismissal as part of the transfer as unfair dismissal. There are two different types of transfers that are safeguarded under TUPE regulations; they are: business transfers, and service provision changes. When carrying out business transfers, the company retains its identity in terms of the type of goods and services they offer but the business ownership is transferred. On the other hand, service provision changes the services are reassigned. As a result, the transfer needs to have an economic entity attached to it and not just an arrangement that involves solely the supply of goods and services (ACAS, n.d)

During the transfer process, the parties involved have to consult and hold meetings with the employees as well as their trade union representatives. Employers expected to provide their employees with up to 13 weeks’ pay as compensation. They are also to provide the following information to both their employees and representatives. This information includes the date of transfer, confirmation of the transfer, the impact of the transfer or relocation on the employees, and the actions that have been taken to protect employees from the negative side effects of the transfer. The transfer should also capture extra details such as the terms of service, age, liabilities, and all other relevant details. This should be submitted at least 28 days before the beginning of the transfer (ACAS, n.d)

4.1 . Identify the major statutory rights workers have in the fields of pay, leave and working time.

The major statutory rights employees possess in regards to their pay, leave, and working time are covered in employment law covering different aspects such as the legal working hours, payments, leave days, rest periods, night shifts, workweeks, and the right to receive payment. The main working time regulations in the UK are found in the following laws: The Working Time Regulations 1998 (SI 1998/1833) (WTR), and The Working Time (Amendment) Regulations 2007 (SI 2007/1079). They cover various issues including work hours and holidays (CIPD. 2020).

The Working Time Regulations 1998 (SI 1998/1833) (WTR), allows employees and employers to have the freedom to establish and also agree on the number of working hours that suits both parties. The agreed working hours are however restricted to the maximum working hours that have been set out in WTR 1988). This law also places limits on the average working week, night-time working hours, hours that young workers can work, and right to statutory leave entitlement.

The Working Time (Amendment) Regulations 2007 increased the annual leave entitlement. meaning workers are entitled to 4.8 weeks holiday (24 days for workers working a 5-day week), with a further 0.8 weeks increase. It also allows for a maximum statutory entitlement of up to 28 days of paid holiday annually

Pay

Major statutory rights regarding pay are found in the Working Time Regulations 1998. Under this law, the payment employers provide to their employees has to be fair. Employers are not allowed to pay workers below the national minimum wage. For a person to qualify to get the National Minimum Wage, they must have attained a minimum required age of 23 years. Contrary to this, contracts that are issued to individuals who fall below the minimum wage cannot be legally binding.

Leave

Laws concerning employee leave days are covered in the Working Time Regulations 1998. In regards to leaving and leave days, workers are granted the right to a paid holiday totaling 5.6 weeks of paid annual leave. For individuals working for 5 days a week, they are granted 28days. Under the law, workers continue to accrue holiday entitlement even when they are on sick leave, parental leave, adoption leave, maternity leave, or any other type of statutory leave (CIPD. 2020).

Working time

The Working Time Regulations 1998 (WTR), offers the following rights & protections to all employees:

  • Work for 48 hours for a week, as long as the calculated average for 17 weeks amounts to less than 48 hours per week
  • An average working time limit that amounts to 8 hours of work time in 24 hours
  • 11 hours per day.
  • Weekly day off
  • The right to rest in the workplace. Individuals whose working days are longer than 6 hours. They are guaranteed at least 20 minutes of personal uninterrupted break.

4.2 . Explain the major requirements of equal pay law.

The major requirements about equal pay require that both genders are eligible to receive equal pay for doing equal work. This means no one should get paid less than another individual of the opposite sex when both do equal work or carrying out the same duties for the same employer. It is important to note that equal pay strictly employs to payment terms and working conditions. It also covers the basic salary, pension, working hours, wages, yearly leave allowance, overtime pay, redundancy pay, and performance-related pay, etc. The Equal pay law is found in the Equality Act 2010 and applies to all employees, workers, agency workers, apprentices as well as full-time, part-time, or temporary contracts. It also applies to self-employed individuals who have been personally hired to carry out some duties. Under the law, equal work is considered as either: like work; work rated as equivalent or work of equal value (ACAS, 2020).

Under the Equality Act 2010, it is a requirement for all employers to report any variations in pay between the genders. The gender pay gap figures that an employer presents must account for different aspects such as ordinary pay, as well as extras such as bonuses. In addition, employers are required by law to report any existing differences in mean and median bonus pay between male and female workers. Gender pay reporting requires employers to include sick pay, or payment towards other courses such as maternity, paternity, adoption, or parental leave. Any employer who fails to report or disclose misleading data, on time, risks violating the Equality and Human Rights Commission (EHRC) legislation. The consequence of such actions includes facing disciplinary actions that may lead to court orders and payment of legal fines (ACAS, 2021).

4.3 Explain major maternity, paternity and other family-friendly employment rights. 

Some of the relevant pieces of legislation addressing maternity, paternity, and other family-friendly employment rights include; The Flexible Working Regulations 2002, Families Act 2006, Children and Families Act 2014, and Employment Rights Act 1996, and Employment Act 2002. Employees are entitled the statutory rights pertaining to different aspects covered in this law including maternity leave, paternity leave, shared parental leave, adoption, as well as all other family-friendly employment rights for instance, taking unpaid parental leave, taking time off, attending to emergencies, and requesting for flexible working hours (CIPD, 2021).

Maternity Leave

In the UK, several descriptions are used for maternity leave. These key terms are: compulsory leave, statutory maternity leave, and shared parental leave. Under the compulsory leave, a mother is allowed to take up to two weeks off as soon as they give birth. At this moment, a woman is not allowed to work. In a factory setting, this time is extended to four weeks. Under statutory maternity leave, it is plausible to take up a 52-week leave. The statutory maternity leave does not possess a qualifying period. However, it generally contains what is termed to as a qualifying period that is directly related to the terms of statutory maternity pay. Under the shared parental leave, there is provision for the shared leave to be extended to either one or both parents (CIPD, 2021).

Women are also entitled to go back to their previous jobs and enjoy the same benefits, terms of employment, and working conditions if they had exercised their rights to take maternity leave for 26 weeks or less. They can also request time off if they feel they have to undertake a risk assessment procedure during pregnancy. Women also possess the right to request to be provided with alternative work or working conditions in cases where they feel there is any type of risk either to themselves or the baby’s health (CIPD, 2021).

Paternity Leave

Various eligibility factors need to be fulfilled before applying for paternity leave in the UK. For instance, the worker has to have worked continuously for 26 weeks ending with the 15th week before the baby is due. The worker also has to be the biological father or a legally recognized partner that is directly connected to the mother. Workers also has to have the duty of care for the baby’s upkeep or expect to take up responsibilities needed to take care of the baby as well as its upkeep. The basic statutory leave is accords two weeks as the maximum amount of time. Paternity leave is only applicable between the baby’s birth date or any day of the week after the birth of the baby. However this provision only extends to within 56 days of the baby’s birth date (CIPD, 2021).

Family-friendly Employment Rights

Some of the family-friendly Employment Rights that workers can enjoy include the shared parental leave which allows parents who are both employees to enjoy statutory leave and receive pay either after the birth or adoption of a child. This right is available to either the birth parents, parents adopting, and parents in a surrogacy arrangement (CIPD, 2021).

5.1 Identify the major requirements of health and safety law. 

The Health and Safety at Work Act 1974 (HASAWA) provides a different set of rules or guidelines that employers need to follow if they are to guarantee their worker’s health and safety in the workplace. Under HASAWA 1974, employers are needed to provide a safe work environment, provide adequate tools and equipment, install safety systems, and make sure that people assigned with different duties in the workplace are qualified for their posts and are familiar with their duties and responsibilities.

HASAWA 1974 addresses the mental health and wellbeing of all workers. It protects workers from harmful conditions and provides a legal framework that workers can pursue if they feel they are working in an unsafe work environment. It also sets out rules that require employers to set a high standard of health and safety in the workplace while at the same time encouraging employers to provide mental health training and mental health support to their workers. HASAWA also addresses work-related stress and motivates employers to take a more proactive approach to combat work-related stress. Under HASAWA employers are required to provide a safe, healthy, and fair work environment. Employers should also take an active role to prevent harassment or bullying in the workplace. Employers will be held liable for any case of harassment or bullying that any worker experiences at work (CIPD. 2020).

5.2 Explain the significance of implied duties as regards the management of employees at work.

Implied duties are one of the most crucial and widely quoted terms when it comes to maintaining mutual trust and confidence in the workplace. Mutual trust and confidence are vital since they create an environment where both employers and employees can perform their duties stress-free. This is highly significant since the environment creates a conducive work environment that boosts productivity while at the same time taking care of both the employer and employees’ work-life balance. Such an environment significantly reduces workplace protests or any action that requires the management to take a break from the daily routine.

The concept behind the duty of trust and confidence, cooperation, fidelity, respect, fair treatment, have revealed their importance over time and play a huge role in employment contracts where it is viewed as an implied term. As a result, both parties are required to not act in a demeanour that will probably result in the breach of their mutual trust or confidence. Thus, in the case of a breach, there are repudiatory consequences. This includes termination of contracts or legal repercussions.

Both organizations and employees can both avoid or resolve issues that may amount to a breach of this term by taking active steps like taking part in constructive communications that engage employees. Additionally, there is also the need to address any workplace accusations as soon as they happen. Organisations can also take an active role and come up with policies that allow workers to collaborate. They can also create platforms where workers can raise issues, follow grievance procedures, and get verdicts that are considered to be equal and fair.

The concept of constructive dismissal takes effect when a worker can make a constructive dismissal claim immediately after they resign since they perceive that their employer or organization has seriously breached the terms of their employment contract.

5.3 Explain the principles of the law on freedom of association. 

The law on freedom of association extends the right to assemble to all workers. The law of freedom of association also allows workers to join trade unions and, in the process, do not face any kind of discrimination based on whether they decide to be a member of a trade union or not. The Principle of the law on freedom of association extends to three key areas: it recognises the existence of trade unions, management of industrial conflict, and disclosure of information. When a particular trade union gains legal status, they can start having negotiations with employers. These negotiations revolve around very important subjects related to workers’ rights including terms of payment, redundancy, collective bargain, and compensation (GOV.UK. 2021).

The freedom of assembly and association mandates that all workers should be given the right and freedom to associate and assemble peacefully. Under the law on freedom of association, workers can choose whether or not to join trade unions. Additionally, they also have the choice to choose which trade unions to join based on what benefits they offer their members. The principles of the law on freedom of association is pertinent to employment since this law contains different tenets that provide workers with certain rights including the right to hold protests, the right to hold meetings, the right to hold demonstrations whenever they feel their grievances are not being addressed or whenever they feel they are being treated unfairly at work. This law also confers workers with the right to join or align themselves to any political group, voluntary group, or association (GOV.UK. 2021).

6.1 Explain the main requirements of unfair dismissal law in respect of capability and misconduct issues. 

ACAS 2021 describes capability as a worker’s ability, skillset, knowledge, or aptitude in reference to the tasks assigned or position they occupy in the organization. Misconduct refers to any behaviour that is perceived to be below the standard that all employees are mandated to follow. In most instances, it is a term that is used to describe a breach of contract (ACAS 2021).

Unfair dismissal law contains several requirements that need to be adhered to when dealing with capability or misconduct issues. For instance, there is a need to get clarification and initial understanding from all the affected parties. In addition to this, a comprehensive investigation needs to be carried out. This is important to establish the root cause of all the grievances or accusations levelled against an individual or group. Disciplinary hearings also need to be held with all the affected parties present. At the end of the hearing, there should be a verdict indicating the next course of action. The verdict or outcome of the meeting also needs to be documented. The affected parties have the right to appeal (ACAS 2021).

Certain processes need to be followed when addressing capability. They include creating improvement notes that outline some of the key areas of improvement that an employee needs to work on. It may also entail enrolling an employee in a training program or assigning them a coach or mentor who will guide them through various tasks or procedures. Setting up performance appraisals or using key performance indicators can also be a great way of addressing capability (ACAS 2021).

The 5 fair reasons for dismissal are redundancy, employee misconduct, poor performance, breach of an employment contract, or any other substantial reasons such as a client’s refusal to work with a certain employee or the expiry of fixed-term contracts (ACAS 2021).

6.2 Explain the scope of the right for employees to be accompanied at serious discipline and grievance hearings.

Different legislations contained in the UK law confers an employee the right to be accompanied to a hearing, especially hearings that involve serious work grievances, accusations, or disciplinary issues. During this period, an employee is also extended the right to make a decision concerning who they would like to accompany as witnesses to such hearings. Under the ACAS’ Code on Disciplinary Practice and Procedure, an employer is required to let the affected party choose a witness who will accompany them to the hearing and also be present throughout the hearing process (ACAS, 2021). The primary objective behind this decision is to ensure that the affected individual receives a fair hearing and that any verdict reached at the end of the hearing is fair. The work of the witness is to make sure that the process and the final verdict were meted out in a just manner. Using a witness is also another way of making the hearing process seem procedurally fair (ACAS, 2021).

The ACAS Code on Disciplinary Practice and Procedure also sets out guidelines on who qualifies as a witness, they include colleagues, representatives from the trade union, or an employed official working for a trade union (ACAS, 2021). Employers are discouraged from denying employees exercising this right. Any violations put the organization at huge risks. The employer risks being accused of carrying out an unjust hearing. In the case where such a violation takes place and the hearing comes up with a verdict that recommends the affected party to be dismissed, the organization risks facing legal repercussions. The summoning letter should also be served in ample time, preferably 72 hours before the hearing. This gives the employee ample time to look for a witness. It is important to also note that the witness’ level of participation in the hearing is curtailed. A witness is allowed to ask questions or seek clarification sparingly. The only exception is when there is an urgent need for them to be actively involved in the hearing such as in the case of a language barrier or when representing an individual with any form of disability (ACAS, 2021).

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