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A look at employment law

Employment law is a complex and ever-changing field governed by both legislation and case law. Solicitor Andrew Lockhart-Mirams gives a non-exhaustive overview of some of the key areas

Employment law is a complex and ever-changing field governed by both legislation and case law. Solicitor Andrew Lockhart-Mirams gives a non-exhaustive overview of some of the key areas

First let us discuss equality and discrimination.

Anti-discrimination laws apply throughout the employment relationship, from recruitment and selection right through to provisions for ex-employees. It is unlawful to discriminate against any person on the basis of, for example, age, sex, race, or disability, or to treat part-time or fixed-term employees less favourably than those working on a full-time permanent basis.

Employers must ensure that the working environment is not hostile or intimidating and avoid practices that might indirectly put a particular group at a disadvantage, as well as avoiding directly discriminatory practices.

Employment terms

Under statute, employees must receive a statement of terms within one month of starting employment, and have written notification within one month of any change. Certain particulars must be supplied in one document (for example, job title and salary information), others, such as disciplinary and grievance procedures, can be provided in some other accessible form. The statutory requirement may be satisfied by incorporating the relevant terms in a written contract.

Certain terms must conform to statutory minimum requirements. For example, the Working Time Regulations provide that full-time workers are entitled to at least 4.8 weeks' leave per annum (inclusive of public holidays) and the National Minimum Wage Regulations provide that workers aged 22 and over should be paid at least £5.52 per hour. Contracts may improve upon these minimum terms but must not fall below them.

Salaried GPs in GMS practices must be employed on terms no less favourable than the BMA model terms. PMS practices, although not obliged to abide by these terms, often adopt them nevertheless. Under the model terms, GPs are entitled, for example, to six weeks' annual leave, plus public holidays and study leave. Practices that have adopted Agenda for Change must abide by relevant terms.

Certain duties are implied into an employment contract, such as a duty of fidelity and good faith. This duty encompasses a duty not to disclose confidential information and not to compete with the employer, but has limited application after termination of employment so employers may seek to include restrictive covenants in an employee's contract to prevent them disclosing confidential information or working for competing practices after their employment ends.

Disciplinary and grievance procedures

All employers must have a dismissal and disciplinary procedure and a grievance procedure. The statutory standard procedures involve a statement of grounds for the disciplinary action or grievance, a meeting and an appeal procedure. Modified statutory procedures omit the meeting but may only be used in limited circumstances, such as some cases of gross misconduct.

Employers are advised to set up more detailed procedures for dealing with disciplinary and grievance issues that are tailored to the specific workplace and have greater safeguards than the statutory procedures.

Protection from dismissal

Employees with a year's service or more have a right not to be dismissed unfairly. In some cases, this right accrues from the start of employment (for example, the right not to be dismissed for being pregnant). If an employee brings a claim for unfair dismissal, the employer must demonstrate that there was a fair reason for the dismissal (for example, misconduct or redundancy) and that they acted reasonably in dismissing the person for that reason. Acting reasonably will involve, for example, having given appropriate training, support and warnings in cases of poor performance, or having adopted fair procedures for selecting staff for dismissal in a redundancy situation.

Employees' continuity of employment is protected where there is a change of employer. For example, if there is a change in the composition of a partnership or a takeover of a practice by a third party, employees have a right to continue to be employed on their existing terms and conditions.

Where employment is terminated, this must be in accordance with the notice period in the contract (which must be at least the statutory minimum). If there is no notice period specified, notice must be reasonable, which could, depending on the circumstances, be more than the statutory minimum. If insufficient notice is given, the employee can bring a claim for wrongful dismissal even if the dismissal is otherwise fair and reasonable.

Family-friendly rights

A pregnant employee is entitled to 26 weeks' ordinary maternity leave and 26 weeks' additional maternity leave, regardless of length of service. During ordinary maternity leave, employment terms (except the right to remuneration) apply so far as they are compatible with being on maternity leave. The employee has a right to return to her original job after ordinary maternity leave. During additional maternity leave, employment terms do not generally apply and she is only entitled to return to her original job if this is reasonably practicable.

Statutory maternity pay is payable for up to 39 weeks. There is also an entitlement to up to 10 ‘keeping in touch' days when the employee can come to work without bringing her maternity leave to an end.

A biological father (or the husband or civil partner of the mother) with responsibility for the child's upbringing and who has 26 weeks' continuous service ending with the fifteenth week before the expected week of childbirth is entitled to two weeks' paid paternity leave at the lower rate of statutory maternity pay. Rights are the same as for ordinary maternity leave.

One half of an adopting couple is entitled to adoption leave on a similar basis to maternity leave, although there is a minimum service requirement and statutory adoption pay is at the lower end of statutory maternity pay.

Other family-friendly rights include the right to take up to 13 weeks' unpaid parental leave to care for children under five (or 18 weeks in the case of a disabled child until their eighteenth birthday), the right to request flexible working arrangements to care for children or dependants, and reasonable unpaid time off to deal with an emergency involving a dependant.

Health and safety

Employers have responsibilities in the field of health and safety, including a duty to have regard to employees' and visitors' safety, a duty to consult with employees about health and safety matters, and obligations to have a health and safety policy, to maintain liability insurance and to give health and safety representatives time off for training.

Employers may be vicariously liable for breaches of health and safety committed by employees in the course of their employment.

Immigrant workers

It is an offence to employ someone who is not entitled to work in the UK. European Economic Area (EEA) nationals have the right to work in the UK without a work permit (although nationals of some of the new EU member states must register with the Home Office if they are to work in the UK for more than a month).

Non-EEA nationals normally require a work permit before the employment starts and it is the employer who must make the application. It may be necessary to demonstrate that no EEA nationals are suitable for the post. In the current climate of too few jobs for too many newly qualified GPs, this may be harder to demonstrate, especially as it may now be harder to specify the need for experience without breaching age discrimination laws.

Andrew Lockhart-Mirams founded Lockharts solicitors in 1995 and currently leads teams advising on NHS

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