Solution

Table of Contents

Task. 2

Email 1: 1.1 Objectives of Employee Regulations. 2

Ensuring Fair Treatment and Equality: 2

Protecting Employee Well-being: 2

Email 2: 1.2 European Court of Justice (ECJ) Judgements. 3

Email 3: Principles of Equality Act 2010 on Discrimination. 4

Occupational Requirements (ORs): 5

Conditions for ORs: 5

Potential Developments: 5

Email 4: 2.2 Equal Pay and Genger Reporting. 6

Equal Pay. 6

Gender Pay Gap Reporting. 6

Recommendation. 6

Potential Developments. 7

Email 5: 3.1 Changing an Employee’s Contract Lawfully. 7

Flexibility Clauses: 7

Constructive Dismissal Claims. 7

Time Limit for Claims. 8

Potential Developments. 8

Email 6: 3.2 Legal Requirements for Redundancy Process. 8

1. Identification of Reasons for Redundancy. 8
2. Stages in the Process. 8
3. Information on Consultation Requirements. 9
4. Redundancy Pay and Notice Periods. 9
5. Risks of Not Following Correct Procedure. 10

Email 7: 3.3 Explanation of Employee Rights under TUPE Regulations. 11

Email 8: 4.1 Explanation of Holiday Pay for Nurse Bank Staff. 12

Workers’ Rights to Holiday Pay. 12

Holiday Pay Calculation. 13

Potential Developments. 13

Email 9: 4.2 Differences Maternity Leave (ML) and Shared Parental Leave (SPL). 13

1. Exclusive Entitlement vs. Shared Responsibility. 13
2. Fixed Duration vs. Flexible Sharing. 14

Potential Developments. 14

Email 10: 4.3 Flexible Working. 14

Employment Rights and Recent Changes. 15

Refusal Grounds. 15

Future Developments. 15

References. 16

Task

Email 1: 1.1 Objectives of Employee Regulations

Employment regulation acts as a framework in creating and maintaining employment relations and its key objectives are to establish and maintain employment equity and employee rights and health. These objectives are important not only within the framework of compliance, but also regarding the formation of a favorable organizational climate for both employees and employers.

Ensuring Fair Treatment and Equality:

One of the major objectives of regulation of employment is to prevent discrimination where employees are protected from unfair treatment on grounds of their race, sex, age, disability or race. This is captured in the Equality Act 2010 which brought together other anti-discrimination laws and offer wide coverage for unfair treatment (ACAS, 2023). Apparently, any regulation that is put in place has the effect of ensuring that organisations promote the diversity and non-discrimination of diversity within the workplace. In the context of the NHS Trusts, this actually duly reflects the principle of public service values, ensures higher levels of employees’ satisfaction and retention and, therefore, contributes to the improvement of patients’ conditions. Employment regulation promotes legal compliance on issues to do with fairness through reducing legal liabilities, building a good image for organizations and supporting a fair society. The challenges of this include challenging in identifying the discrimination. As such, the victims only have capacity of taking action if knowledgeable or understand entire contents of this legislation.

Protecting Employee Well-being:
Employment regulation gives assurance to a workplace that their employees’ welfare is of paramount importance as regards their health. This amounts to developing safer ways of working, elimination of risks and managing stress at the workplace. One of them is the Management of Health and Safety at Work Regulations 1999 that says about the employer’s exposure assessment and control of risks; employers must also ensure the provision of health and safety arrangements; workplace organizations; and training of employees (‌GOV.UK, 2015). By following such laws organizations not only protect their employees from harm and increase productivity and morale and decrease employee absenteeism and promote a healthy working environment. Due to the broad nature of protection of employees wellbeing, it incurs immense costs to implement. Also, introduction of new wellbeing protocols encounter likely resistance from staff accustomed with old initiatives.

Though dealing with employment regulation can consume considerable time, its value is undeniable. These regulations serve the principles of justice and minimize dangers from the aspect of both law and reputation to maintain a safe and successful environment in the organisation.

Future advancements, for example, advanced mental health protection, or introduction of hybrid working legislation will further support the significance of these goals. The 20% of time spent on regulation is therefore a strategic and requisite investment towards creating long term stable work force.

Email 2: 1.2 European Court of Justice (ECJ) Judgements

Pre-Brexit judgments of the ECJ have legal status in the UK post Brexit but has changed its importance since Brexit (Smith, 2024). These judgments continue to constitute part of the domestic law of the United Kingdom but they are not considered as directly applicable as they used to be following the Brexit.

Any judgment delivered by the ECJ prior to 31 January 2020 is still valid law in the UK, to the extent that it has been adopted as part of domestic legislation during the transition period as defined under the EuBR. This is the case since the UK has kept European Union based laws through the European Union (Withdrawal) Act 2018. These judgments are classified as ‘retained EU law’ meaning they are applicable where they have not been amended or repealed by UK statute law (Law Society, 2024).

ECJ judgments made before Brexit are binding on lower UK courts, such as employment tribunals, unless overridden by the UK Supreme Court or Court of Appeal. More recent courts, including the Supreme Court, have no obligation to adhere to ECJ decisions but it might look at those decisions while interpreting existing retained EU law. For instance, the decision in Working Time Directive: House of Lords and the European Court of Justice on rights to holidays leave are significant e- case in UK employment law and are still relevant in any claim of Employees’ pay and working hours’ entitlement.

The judgements cannot be entirely disregarded. Even though the UK courts are able to choose not take into consideration ECJ cases as setting precedents, UK courts should ensure they follow this route carefully taking into consideration the developing legal structure of US. The failure to observe the ECJ judgments would, therefore, only likely to happen where there it’s clear that UK legislation has replaced or provides for outcomes that are contrary to those of the ECJ judgments.

Example of Case Law:

Instituto Nacional de la Seguridad Social (2015) asserted that when the worker does not have a fixed workplace, the time spent as travel is considered part of working time in compliance with the Working Time Directive (‌Europa.eu, 2015).

Potential Development:

Future legislative amendments encompassing the present retained EU legislation pursuant to the Retained EU Law (Revocation and Reform) Act 2023 may amend the role of ECJ precedents.

Email 3: Principles of Equality Act 2010 on Discrimination

Under the Equality Act 2010, discrimination in recruitment and selection is strictly regulated to ensure fairness and equality. Discrimination has the following principles as outlined by ACAS (2023a):

      Direct Discrimination: Giving a different level of treatment to a person based on a certain category they belong to (gender, age, race, etc.). For example, denying a possible employee a job merely on the basis of her gender is strictly prohibited except where the candidate can be demonstratively shown not to meet the specific requirement of the occupation.

    Indirect Discrimination: Serving a provision, criterion, or practice that disadvantages people with a particular protected characteristic and is not for a reasonable and demonstrable purpose. For instance, the employer may set down rules whereby all the employees must work late shifts and those rules may be prejudicial to women employees who havefamily care-giving responsibilities other than where such rules can be objectively justified.

   Harassment: Behaviors that are associated with an unlawful objectionable characteristic and leave the individual offended or humiliated, or where the surroundings are hostile, intromission, demeaning, or intimidating.

    Victimisation: Failing to promote or assign fair responsibilities or requirements to an employee because they filed a complaint about discrimination or supported another person who did so.

Occupational Requirements (ORs):

Based on the Equality Act 2010, it may be lawful to say that sexes are capable of doing specific jobs, as indicated by FPFW (2023). There should also be reasonable, relevant and necessary conditions as pertains to the job description.

For example:

• Permitted: For instance, in a women’s shelter, it may be legal to insist that only female employees have to deal with other women who are in a vulnerable state for purposes of respecting their privacy and worth.
• Not Permitted: Hiring a male manager in an administrative position and stating that a male is preferred over a female would be considered unlawful discrimination (FPFW, 2023).

Conditions for ORs:

• The requirement must be essential to the job, not just desirable.
• Employers must demonstrate that no alternative arrangement could address the need.
• The decision must be regularly reviewed to ensure continued justification.

Potential Developments:

Future updates in employment law might include greater emphasis on gender identity and non-binary considerations, reflecting societal changes and ensuring inclusivity. Employers should remain alert to any legislative developments to maintain compliance.

Email 4: 2.2 Equal Pay and Genger Reporting

Under the Equality Act 2010, specific legal requirements govern equal pay and gender pay gap reporting. Any decisions related to pay or grading must align with these provisions to ensure compliance and fairness.

Equal Pay

Equality Act 2010 ensures that employees of one sex doing equal or equivalent work to those of the other sex should be paid equal wages unless there exist business related reasons that would warrant otherwise. ”Equal work” means work, work rated as equivalent or work of the same value in regard to the skills, effort and demands involved (‌ACAS, 2024).

The nurse manager’s proposal to upgrade two male HCAs raises potential concerns, given that 80% of HCAs in the Trust are women.  Lacking concrete and respectable reasons, such action would lead to indirect discrimination because one group (men) is favored and underrepresented in the given position.

A relevant case, Brennan v. Sunderland City Council (2012), illustrates the importance of ensuring pay differences are evidence-based (‌Employment Cases Update, 2023).  In this case, workers especially women fought for equal wages after proving by their effort that they work for similar tasks as men earning higher wages. This explains why there is a provision in the law that out rightly prohibits discrimination in the payment of workers without sound reasons to do so.

Gender Pay Gap Reporting

According to the Equality Act, any organisation that has more than 250 employees must report on the gender pay gap on an annual basis. Proposing the re- advertisement of only male HCAs could further present the Trust and widen the gender pay to the public and regulatory bodies thus incurring further costs.

Recommendation

I recommend rejecting the upgrade as proposed unless the nurse manager can provide robust evidence that the decision is based on non-discriminatory factors. For instance, if the two HCAs have emerged as more productive or have accepted more over areas of grade A than other staff, such improvement must be justified and well explained. Alternatively, promotion criterion that was fair and equitable could be adopted so as to give all HCAs a shot at promotion.

Potential Developments

Future legislative changes may require organizations to report pay data by job grade or department, highlighting the need for consistent and transparent practices in promotions and upgrades.

Email 5: 3.1 Changing an Employee’s Contract Lawfully

Changing an employee’s contract lawfully requires careful adherence to employment law principles to avoid potential claims, such as constructive dismissal.  Variations such as working hours should be communicated openly and performed only when there is a consensus or at the discretion of a sound flexibility clause.

Flexibility Clauses:

Some contracts include flexibility clauses allowing employers to make certain changes, such as adjusting working hours as evidenced by ‌ACAS (2023b). However, these clauses need to be clearly stated and for good reason and each party must not use the clause against the other party in bad faith. Thus, unconditional clauses such as ‘hours may vary as required’, is not a sufficient reason to change them arbitrarily or excessively. For example, in United Bank Ltd v. Akhtar (1989), the court stated that even if the parties contain flexibility clauses, changes must be exercised reasonably so as not to frustrate the contract of good faith (Croneri, 2023).

Constructive Dismissal Claims

Constructive dismissal occurs when an employee resigns due to the employer’s fundamental breach of contract, such as making significant changes to working hours without agreement or reasonable justification (‌ACAS, 2022). For a claim to succeed, the employee must show:

• A breach of contract (explicit or implied terms, such as trust and confidence).
• The breach was serious enough to justify resignation.
• They resigned promptly following the breach.

Regarding working hours, the claimant may allege that a working hour change was sudden or unfair and that increase causes undue hardship. For instance, wherein an employee is compelling to work at hours that are inconsistent with the prior undertakings, this can be interpreted as constructive dismissal as proved in Morrsi (2019).

Time Limit for Claims

‌ACAS (2022a) reports that former employees have three months less one day from the date of resignation to file a claim with the Employment Tribunal. This period can be extended in certain circumstances, such as ongoing mediation or other valid reasons.

Potential Developments

Future legislative reforms may focus on enhancing employee protections against contract changes, particularly in response to increased flexible and hybrid working arrangements. Employers should stay updated and ensure transparent communication to minimise disputes.

Email 6: 3.2 Legal Requirements for Redundancy Process

As you consider implementing the reorganisation within your directorate, it is essential to fully understand the legal requirements surrounding redundancy.

1. Identification of Reasons for Redundancy……

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