UK Employment Rights Act 1996 and Equality Act 2010

Introduction

This paper offers a summary of two important laws and regulations governing employment in the United Kingdom: the Employment Rights Act 1996 (ERA 1996) and the Equality Act 2010 (EA 2010). For both laws, the particulars, specifics, and common requirements for all parties involved — both employee and employer — are covered. Although the two laws were passed nearly a generation apart, both hold a very important place in the employment law landscape of the United Kingdom.

Employment Rights Act 1996: Scope and Key Provisions

There are several important requirements and regulations within the Employment Rights Act 1996. When an employee begins work with an employer, the employer is obligated to provide a summary of terms and requirements. The law sets out five main requirements. First, an employer must give the employee a written statement containing the particulars of the employment contract and duties. That statement may be given in installments, but the entirety of the employment details must be extended to the employee within two months of beginning employment. The details that must be covered include the name of the employer, the date that employment began, and the date on which the employee's period of continuous employment began.

Additional details that must be covered include the scale or rate of pay and/or the formula used to calculate it, the interval at which pay is made (e.g., monthly, weekly), and the terms and conditions relating to hours of work, including what constitutes "normal" working hours. Other matters that should be addressed include holiday entitlement and restrictions, arrangements if a worker cannot work due to sickness, and the way in which the employee will receive any pension payments. Further requirements cover the length of notice an employee must give when terminating their contract, the employee's job title, the anticipated length of the position if it is not permanent, and the location or locations at which the employee will work, including specific street addresses. If the employee is required to work outside the United Kingdom, the written statement must define the expected duration of that assignment, the currency in which the employee will be paid, any additional compensation due for the foreign assignment, and the terms and conditions pertaining to the employee's return to the United Kingdom (United Kingdom, 2016).

The second section of the ERA deals with supplementary requirements regarding wages. As is common in employment law, these provisions primarily protect the employee. Most significantly, an employer may not deduct from an employee's wages without authorization, although certain routine deductions — such as taxes — are expected and lawful. Generally, employees may not be required to make payments to the employer, though exceptions are outlined in the sixteenth section of Part II. Additional provisions address cash shortages and enforcement mechanisms relating to wage protection (United Kingdom, 2016).

The third section of the ERA concerns the guarantee of payments. Key points include a description of the right to guaranteed payments, exceptions to that right, rules for calculating such payments, limits on entitlement, the treatment of payments made under a contractual agreement, how guaranteed payment agreements may be modified, and available arbitration and complaint systems for resolving disputes. A separate section is dedicated to Sunday work and betting workers. Contracts involving Sunday work may be unenforceable or modifiable under certain circumstances, and employees who object to Sunday work on religious grounds are afforded specific protections.

The fifth section of the ERA covers life events for which employees may not be penalized. These include jury service, certain health and safety cases, Sunday work, working time cases, service as a pension scheme trustee, and employee representation, among others. Employees retain the right to bring complaints before employment tribunals. There are also protections for time off relating to public duties, job searching, antenatal care, care for dependents, and similar circumstances (United Kingdom, 2016).

Another important section covers suspension from work. The ERA addresses acceptable treatment and remedies in cases of medical suspension, maternity suspension, and situations involving temporary or agency workers. Part VIII covers leave entitlements, including maternity leave, adoption leave, shared parental leave, general parental leave, and paternity leave. This part also addresses flexible working arrangements, including the statutory right to request a variation to one's contract, the employer's obligations when such a request is made, and the complaint mechanism for employees who believe they have not been treated properly.

Part IX of the ERA pertains to the termination of employment. Details covered for both parties include minimum notice requirements, the general rights of employees regarding notice, how terminations must be handled for jobs with normal working hours and for those without, the extension of short-term incapacity benefits, and the requirements for providing written reasons for dismissal. The section also outlines how complaints to employment tribunals may be brought (United Kingdom, 2016).

Part X of the ERA 1996, while closely related to Part IX, merits separate consideration. It addresses unfair and unlawful dismissals. In general, employees have a right not to be unfairly dismissed. Section 95 describes the conditions under which dismissal may occur. Specific provisions relate to post-childbirth terminations and the effective date of termination. Minimum standards of fairness and equity must be upheld, and there are safeguards for employees approaching retirement age. Potentially unfair dismissals are covered in sections 98 through 107 and include matters relating to jury service, family reasons, procedural fairness, flexible working arrangements, and blacklisting. The second chapter of Part X addresses remedies for unfair dismissal, broken down by available awards, orders for reinstatement, and related matters. The remaining parts of the ERA are largely interpretive and housekeeping provisions that support the earlier sections (United Kingdom, 2016).

The terms of any employment contract are formed and formalized based on a number of inputs and influences. A contract must satisfy legal requirements such as offer, acceptance, and consideration. Provided a contract operates within those legal norms, courts will generally honour it as written. In addition to the terms negotiated between the parties, employment contracts typically reflect the guidelines and policies of the employing organization. Any valid employment contract should contain four major categories of information: the conditions under which the employee will work, the rights of all parties, the responsibilities of all parties, and the duties of all parties. It is important to note that not all contracts are written; some may be verbal (GOV.UK, 2016).

The common law duties of an employer can be summarized in approximately seven obligations. These include: a duty to pay the employee as agreed provided the employee works or is available to work; a duty to provide the employee with work; an obligation to observe all applicable health and safety regulations; a duty to give employees accurate information about their rights under the employment contract; a duty to give employees a reasonable opportunity to have their complaints heard; and a duty to maintain mutual trust and respect. An employer is not legally obligated to provide a reference; however, if a reference is provided, the employer is obligated to ensure that the information given is complete and accurate (Compact Law, 2016).

Employees also have their own duties and requirements under UK employment law. These include: acting as a reasonable employee would in any given situation; a duty of honesty; a duty not to disrupt the business; a requirement to disclose wrongdoing; a duty to carry out lawful orders of the employer; a duty not to disclose the employer's confidential information; an obligation to work with reasonable care and skill; a duty to look after the employer's property when using it; a duty not to compete with the employer's business outside working hours; a prohibition on taking bribes; a requirement to be prepared for reasonable job changes when the employer implements them; and a duty to assign to the employer any inventions or intellectual property created in the course of employment (Compact Law, 2016).

While the ERA 1996 covers matters such as employment duration and contracts, the Equality Act 2010 focuses on discrimination and prohibited conduct in the employment context. Not unlike Title VII in the United States, the EA 2010 specifies characteristics that cannot lawfully form the basis for employment decisions. One of the first issues addressed is socioeconomic inequality. The law goes on to define a specific set of protected characteristics, including age, disability, gender reassignment, marriage and/or civil partnership status, race, religion or belief, sex, and sexual orientation. Prohibited conduct is detailed in the second chapter of the key concepts section and includes direct discrimination, combined discrimination, discrimination arising from disability, discrimination related to gender reassignment and time away from work for the same, pregnancy or maternity discrimination, failure to make reasonable adjustments for disabled persons, methods of identifying discrimination through comparison, and prohibited conduct such as harassment and victimization (United Kingdom, 2016).

Part III of the EA 2010 addresses the provision of services and public functions, along with supplementary information. Part IV covers premises, disposal and management of property, reasonable adjustments, and related supplementary rules. Part V is more extensive and contains specific protections for particular employment contexts, including general employees, contract workers, police officers, partners, barristers and advocates, office-holders, qualifications bodies, employment services, trade organizations, local authority members, and recruitment. The second chapter of Part V addresses pension schemes and prohibits discrimination within such programmes. The third chapter covers the equality of contractual terms with respect to gender, pregnancy, and information disclosure. It addresses equal work, sex equality clauses, applicable exclusions, and the rules governing pregnancy and maternity equality (United Kingdom, 2016).

Sources of the Employment Contract and Common Law Duties

Part VI of the EA 2010 extends the law's reach to education. It prohibits discrimination against persons applying to schools and covers the treatment of current pupils, including obligations relating to disabled pupils and the interpretive framework used in this context. This chapter relates to pre-higher education institutions; the second chapter of Part VI addresses higher and further education, covering admissions, treatment of students post-admission, courses offered, and recreational and training facilities. Part VII addresses associations in the United Kingdom, covering membership and guest treatment within those associations, with specific provisions for political parties. Part VIII covers prohibited conduct more broadly, addressing situations where a relationship has ended, employer liability, employee liability, and details about contraventions of the Act (United Kingdom, 2016).

The enforcement provisions of the EA 2010 are detailed and extensive. They cover the use of civil courts and employment tribunals as enforcement mechanisms. Part X pertains to contracts and identifies terms or clauses that are unenforceable under the EA 2010, which may be excised or nullified accordingly. Part XI addresses the advancement of equality, including the public sector equality duty, public authorities, public functions, the designation of specified public authorities, and the power to impose specific duties. Part XII deals with the transportation of disabled persons, with three chapters covering taxis, public service vehicles, and rail vehicles respectively. Part XIII addresses miscellaneous disabled person transportation issues (United Kingdom, 2016).

Part XIV sets out exceptions to the Act, including statutory provisions, national security considerations, charities, sports, and allowable age-based exceptions (e.g., for safety reasons). Part XV covers family property matters, including the abolition of the husband's duty to maintain a wife, the abolition of the presumption of advancement, amendments to the Married Women's Property Act 1964, and protections for civil partners. Part XVI concludes the Act with additional details covering religious exceptions relating to civil partnerships, obligations of the European Union, and related matters. Indeed, much of the logic underpinning the EA 2010 derives from European Union law (United Kingdom, 2016).

The average award for employment discrimination in the UK is approximately £16,000, which underscores how important it is for employers to identify and prevent unlawful discrimination within their organisations. As noted above, the characteristics that may not form the basis for discriminatory treatment include age (all ages), disability, gender reassignment, marriage, civil partnership, pregnancy and maternity, race and ethnicity, religion or belief, sex, and sexual orientation.

The forms of unlawful conduct recognised under the EA 2010 include direct discrimination, associative discrimination, discrimination by perception, indirect discrimination, harassment, and victimization. Most of these are self-explanatory, but some benefit from clarification. Victimization refers to retaliation against a person for raising or supporting a discrimination complaint. Discrimination by perception occurs when a person is harassed or treated less favourably based on a perceived characteristic, even if that characteristic is not actually present — for example, a person who is bullied for being gay is still a victim of discrimination regardless of their actual sexual orientation. Associative discrimination arises when a person is mistreated because of their association with someone who has a protected characteristic — for example, a person who faces harassment because they have a gay friend may have a claim of associative discrimination. Finally, indirect discrimination, which Americans would term "disparate impact," occurs when a seemingly neutral policy or procedure disproportionately disadvantages members of a protected class (FPB, 2016).

Conclusion

United Kingdom. (2016). Equality Act 2010, Part 5. Legislation.gov.uk. Retrieved August 7, 2016, from http://www.legislation.gov.uk/ukpga/2010/15/part/5

United Kingdom. (2016). Equality Act 2010, Part 2. Legislation.gov.uk. Retrieved August 7, 2016, from http://www.legislation.gov.uk/ukpga/2010/15/part/2