Employment Law In England And Wales

Introduction

For any business which has employees in England and Wales, a basic knowledge of employment law is vital. Knowing what your rights are, and the rights of your employees, will help prevent problems arising. Ignorance of the law will almost certainly cost you money and will do nothing to improve relations with your workforce.

This guide is intended to be a detailed introduction to the main issues and pitfalls faced by employers in England and Wales. It does not address the regimes in Scotland and Northern Ireland which differ in certain respects from the position in England and Wales.

As this guide is only intended to be an introduction to the area, it does not cover all the complexities of the legislation and case law which it addresses. You should take specific advice before you take action. The law is described as at 1 October 2011, so please bear in mind that it may have changed by the time you read it.

1. The Contract of Employment

   Introduction

   An employer may lawfully employ whom it wishes, subject to certain restrictions relating to the employment of children and young persons and work permit and immigration issues. An individual may, however, have a right of action under the United Kingdom's discrimination legislation if a decision not to employ the individual relates to one of the characteristics protected by the legislation such as, for example, the individual's race, sex, marital status, age, religion or belief, sexual orientation, disability or trade union membership.

   Express Terms

   In English law the employment relationship is constituted primarily by the contract of employment, which can be oral or written. The contract is formed when an offer is accepted or conditions to which an offer is made subject are satisfied. Employers should take care in formulating the terms and conditions upon which employment is offered, as seeking subsequently to impose additional terms or change existing terms can be problematic. The contents of the contract of employment are regulated in certain respects by way of minimum prescribed obligations–examples include rights to maternity and parental leave, the national minimum wage, the statutory minimum period of notice and rights in relation to holidays and working time. These minimum obligations are covered elsewhere in this guide.

   Implied Terms

   Whilst an employee's contract of employment will set out express terms relating to matters such as salary, place of work and hours of work, certain terms are implied into all employment contracts. Examples include:

   the employee's duty to take reasonable care in performing his or her duties; the employee's duty to comply with the employer's lawful and reasonable instructions; the employee's duty of confidentiality; the employer's responsibility to take reasonable care for the employee's safety; and both parties' obligation to conduct themselves so as to maintain 'mutual trust and confidence'. Changes to Terms and Conditions of Employment

   Changing the terms and conditions of employees' employment can be problematic. Unless the change is already permitted by the scope of the contract (for example, changing the emphasis of a role within a widely defined job title) or there is an express power to change the contract (which must nonetheless be exercised on a legitimate basis), unilaterally imposing changes to a contract can entitle an employee to resign and claim constructive dismissal (which can lead to damages and/or unfair dismissal claims) or remain employed but bring a breach of contract action for damages in cases of changes to financial laws or refuse to comply with the conditions imposed by the employer. If an employee continues to...