This briefing paper to the senior members of people practice team within the BMC organisation intend to share and refresh employment law insights and good practice. According to CIPD (2022), the employment law is used in regulating the relationship between the employers and employees. This is for governing employers’ expectations from the employees, what employers can ask employees to do and employees rights at work. This is originated from parliamentary legislation, primary legislation, secondary legislation, codes of practice, professional/industry codes of practice, common/case law and law of tort.

1.1 Aims and objectives of employment law legislation

The aims and objectives of the employment law legislation is informed by process followed in their enforcement. According to CIPD (2022), majority of the employment law in UK is grouped into either civil law/private law. This means that it is either enforced after one party (claimant) sue another (respondent) either to get compensation or some other remedy in the civil court. Hence, the aims and objectives of employment law legislation include;

Social Justice in Workplace

Social justice is a practice of promoting equal relationship among the employees and employers with a just power distribution. As evidenced in Personnel Today (2021) through an appropriate embrace on the employment law, exploitation and insubordination which is a characteristic of a capitalist system is eliminated. Despite leadership and management being core in an organisation system, employers are safe from any injustice committed by their staff. For instance, through collective bargaining, Kostal UK Ltd Vs Dunkley and others [2021] UKSC 47 was resolved in a Supreme Court. It had been established the existence of a breach of the Trade Union and Labour Relations (Consolidation) Act 1992 by bypassing collective bargaining.

Fairness and Equality in workplace

Today, a significant issue that has impacted the employment sector is lack of fairness and inequality in areas of gender, age, race and ethnicity (Bogg & Ewing, 2020). In particular, CIP (2022a) by noting on the Equality Act 2010, different protected characteristics are noted which employees must be safe from (see figure 1);

Figure 1: Employees Protected characteristics

Irrespective of the factors illustrated in figure 1, employment law requires all employees to be remunerated equally with internal policies initiated for mitigating structural discrimination. This is similarly essential for promoting staff welfare in their organisation. In overall, intention of leaving such an organisation is reduced.

Protection against unjust, inequitable and negligent acts

Employment law grants employee’s protection against any form of unjust, inequitable and negligence actions. Also, child labour is protected by the existing labour laws. For instance, as noted in HSE (2021), considering a legislation such as Employment Rights Act 1996, the employees are protected from any form of harm by reasonable actions which they pursue on health and safety grounds. Hence, these laws are set for protecting the employees’ rights while ensuring a safeguard of the employers’ interests and maintain the relationship between the two fair and just.

1.2 Role played by tribunal and courts system in enforcing employment law

According to CIPD (2022), after the employment laws have been passed and enforced, the tribunals and court system are used in interpretation of the law and enforcing Parliament laws. Also, in UK, the courts have a core role in settlement of the dispute amongst the parties and dealing with various issues from patens and paternity. The court system and tribunal is as illustrated in figure 2;

Figure 2: UK Tribunal and Court System

The Employment Tribunals (ETs) do not operate through an inherent jurisdiction but depend on parliament for their statutory powers. The Employment Tribunals (ETs) are not supposed to be the last resort but used to offer all parties an easier, speedy, informal and inexpensive procedure of settling disputes. Its operations is in line with the Enterprise and Regulatory Reform Act 2013 (Legislation.Go.UK, 2021) which stipulate the function of Early Conciliation. This is a process where claimants contact ACAS online/phone for noting their claim prior going to ETs for resolving the dispute. A case law example is the Shultz v Esso Petroleum Ltd (1999) IRLR 488 where it was settled by noting the existence of failure to adopt all the required process.

Further, for the employment appeal tribunal, this entail conflicts management in employment relationship and achievement of reasonable adjustment Personnel Today (2022) The various cases managed in this area entail misuse of laws, failing to pursue appropriate practices and unfairness.

Also, the court of appeal is used to enforce cases which relate to civil, or criminal based. According to Ashley (2018), the ordinary civil courts are involved in handling the cases including accidents in workplace with private involving contractual terms and conditions breach. Hence, a decision made in EAT, supreme court and court of appeal evidence that the tribunals ought to take into account of new cases.

1.3 How cases are settled before and during formal legal procedures

In UK, UK Practical Law (2021) note that cases could be settled out of court by sighing a settlement agreement for settling the disputes before it moves to the tribunals hearing and preventing further litigation. The effectiveness of this is avoiding any potential unfair dismissal claims. The approaches which can be adopted are as illustrated in figure 3;

Figure 3: Settlement agreement before formal legal procedures

In figure 3, various approaches are provided for informal solving of the cases which entail the adoption of either mediation or conciliation. The core strategies identified include the engagement of third party either acting as a mediator or conciliator and agree mutually for adopting a particular strategy to resolve the labour disputes.

Role of ACAS– As evidenced in ACAS (2022), this is identified as the COT3 agreement and attained through an Early Conciliation. This body is involved in resolving employment disputes for avoiding the necessity of transitioning to the formal recourse to an employment tribunal. When a resolution is agreed, it will be demonstrated in the COT3 Agreement. Further, unsuccessful early conciliation also lead to ACAS offering guidance in the entire employment tribunal proceedings with the resolution of a dispute.

Use of COT (GB)– As highlighted in Cashman and Ginnivan (2019), for settling an agreement, this form is applied to record terms of settlement of an employment tribunal claim/potential claim before moving to the ET1 fully filled. This is categorised as a holistic and conclusive dispute resolution with no chance offered for passing a tribunal claim in issues of interest or if a tribunal claim has been lodged or closed. A case law example is the Crazy Miss Cokehead Svetlana Lokhova Vs Russian Bank Sberbank CIB (UK) Ltd where a decision was made for the case not to proceed to the tribunal hearing further.

Further, in formal legal proceedings, this entail establishing a normal agreement amongst the parties (see figure 4);

Figure 4: Settling of labour Disputes Formally

In BMC case study, this can provide an appropriate chance for severance payment by employer in return of the agreement not to move the claim further to a court of law.

In line with Mantouvalou (2018), the process followed to settle cases in UK are governed by the Employment Rights Act 1996 section 203. The legislation note that employees and employees can make an attempt to settle cases before or after tribunal claim initiation. The approaches followed are presented in figure 5;

Figure 5: Settling of cases formally

Considering BMC, it would have been advisable to make sure they are not discriminating staff with protected characteristics as earlier noted. This could lead to claims of unfair dismissal among the employees for whistleblowing or noting health and safety factors.

2.1 Principles of discrimination law in recruitment, selection and employment

Recruitment

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