Employment revision
Outcome Page
Employment Rights Act 1996 s 1 and the contract 2
Policies in the workplace 3
Restrictions on freedom to contract 5
Enforceability of post-termination duties 7
Employment status 9
Wrongful dismissal 11
Unfair dismissal 16
Redundancy 23
Direct discrimination 27
Indirect discrimination 30
Victimisation 32
Harassment 33
ET1 form 35
Disability discrimination 38
Transfer of undertakings 41
Varying terms and conditions 47
Settlements 48
Overlapping claims – damages 50
Page 1 of 50
,Employment Rights Act 1996 s 1 and the contract
A s 1 statement must be given within 2 months of starting work, regardless of whether the contract
was oral or written and regardless of the length of term of the contract [Stefanko v Maritime Hotel].1
The statement may refer the employee to a document that is reasonably accessible and contains full
details of the terms relating to pension schemes and disciplinary and grievance procedures [ERA ss
2(2) and 3(1)(aa)]
A s 1 statement doesn’t have to be given if the contract of employment is in writing and contains all
the particulars required under s 1 [ERA s 7A] 2
Any changes in the terms must be notified by the employer in writing within one month of the
change [ERA s 4]
Purposes of a s 1 statement
- Provide information
- Promote consistency
- Ensure compliance
- Prevent disputes
- Assist with dispute resolution
- Risk management
Contents of a s 1 statement:3
- Identity of the parties
- Date employment began
- Date continuous employment began (taking into account any relevant employment with a
previous employer)
- Whether the contract is subject to a probationary period
- Scale or rate of remuneration and intervals of pay and any fringe benefits
- Hours of work
- Any terms relating to holidays and holiday pay, sickness and sickness pay, and pensions and
pension schemes
- Details of any training that will be provided
- Length of notice required to determine the contract
- In the case of non-permanent employment, the period for which it is expected to continue
or, if it is for a fixed-term, the date it is to end
- Job title or brief description of work
- Particulars of any collective agreements which directly affect the terms and conditions of
employment
- Where employees are required to work outside the UK for a period of more than one
month, the period of such work, currency in which payment is made, benefits provided, and
terms relating to the return to the UK
- Details of the disciplinary rules and grievance procedures [ERA s 3]
- Whether a contracting out certificate is in force under the Pension Schemes Act 1993
1
32
2
34
3
32
Page 2 of 50
,Consequences of not giving a s 1 statement
- You cannot bring a free-standing claim for breach of s 1 – you can only use it to increase the
amount of an award given for another reason
- The tribunal must increase the award given by the minimum amount to be paid by the
employer to the worker and may, if it is just and equitable in all the circumstances, increase
the award by the higher amount instead [EA 2002 s 38(3)]
- The minimum amount is equal to two weeks’ pay [EA 2002 s 38(4)(a)]
- There is a maximum weeks’ pay amount [ERA 2002 s 38(6)(a)]
Drafting a contract4
- The two most common types of contracts are fixed term and indefinite contracts
- Logical structure is to group like clauses together
o Definitions
o Start date, duration,5 job title,6 job description
o Salary and benefits7 (including pension)8
o Duties9
o Holiday pay, sick pay10
o Termination
o Signatures
Policies in the workplace
Key policies may include:
- Grievance, disciplinary and dismissal procedures 11
o Acas guide one of the main precedents
- Health and safety
- Whistleblowing12
Recommended policies include:
- Bribery
- Equal opportunities
- Data protection
- Family-friendly rights
- Flexible working
- Internet and email use
4
40
5
41
6
43
7
45
8
49
9
43
10
48
11
59
12
23
Page 3 of 50
, Legal status
- Contractual or merely guidance?
- Generally, the rules contained within policies are not appropriate as contractual terms, as
they do not bestow rights as contracts do
- Considerations
o The importance of the provision to the contractual working relationship
o The level of detail prescribed by the provision
o The certainty of what the provision requires
o The context of the provision
o Whether the provision is workable
- Keeley v Fosroc International Ltd [2006]
o Express incorporation of a policy does not necessarily mean that all the provisions
contained in that document were terms of the contract
o Some provisions, read in their context, may be declarations of an aspiration or policy
falling short of a contractual undertaking
o It is necessary to consider in their respective contexts the incorporating words and
the provision in question incorporated by them
Policy drafting
- Clear
- Comprehensive
- Compliant with the law
- Purpose
- Publication
- Policing
- Punishment
Drafting a whistleblowing policy
- Aim
- Who does the policy affect?
- What is whistleblowing?
- Who is a whistleblower?
- How to raise a concern
- Confidentiality
- Investigation and outcome
- Protection of and support for whistleblowers
- Sanctions
Page 4 of 50
Outcome Page
Employment Rights Act 1996 s 1 and the contract 2
Policies in the workplace 3
Restrictions on freedom to contract 5
Enforceability of post-termination duties 7
Employment status 9
Wrongful dismissal 11
Unfair dismissal 16
Redundancy 23
Direct discrimination 27
Indirect discrimination 30
Victimisation 32
Harassment 33
ET1 form 35
Disability discrimination 38
Transfer of undertakings 41
Varying terms and conditions 47
Settlements 48
Overlapping claims – damages 50
Page 1 of 50
,Employment Rights Act 1996 s 1 and the contract
A s 1 statement must be given within 2 months of starting work, regardless of whether the contract
was oral or written and regardless of the length of term of the contract [Stefanko v Maritime Hotel].1
The statement may refer the employee to a document that is reasonably accessible and contains full
details of the terms relating to pension schemes and disciplinary and grievance procedures [ERA ss
2(2) and 3(1)(aa)]
A s 1 statement doesn’t have to be given if the contract of employment is in writing and contains all
the particulars required under s 1 [ERA s 7A] 2
Any changes in the terms must be notified by the employer in writing within one month of the
change [ERA s 4]
Purposes of a s 1 statement
- Provide information
- Promote consistency
- Ensure compliance
- Prevent disputes
- Assist with dispute resolution
- Risk management
Contents of a s 1 statement:3
- Identity of the parties
- Date employment began
- Date continuous employment began (taking into account any relevant employment with a
previous employer)
- Whether the contract is subject to a probationary period
- Scale or rate of remuneration and intervals of pay and any fringe benefits
- Hours of work
- Any terms relating to holidays and holiday pay, sickness and sickness pay, and pensions and
pension schemes
- Details of any training that will be provided
- Length of notice required to determine the contract
- In the case of non-permanent employment, the period for which it is expected to continue
or, if it is for a fixed-term, the date it is to end
- Job title or brief description of work
- Particulars of any collective agreements which directly affect the terms and conditions of
employment
- Where employees are required to work outside the UK for a period of more than one
month, the period of such work, currency in which payment is made, benefits provided, and
terms relating to the return to the UK
- Details of the disciplinary rules and grievance procedures [ERA s 3]
- Whether a contracting out certificate is in force under the Pension Schemes Act 1993
1
32
2
34
3
32
Page 2 of 50
,Consequences of not giving a s 1 statement
- You cannot bring a free-standing claim for breach of s 1 – you can only use it to increase the
amount of an award given for another reason
- The tribunal must increase the award given by the minimum amount to be paid by the
employer to the worker and may, if it is just and equitable in all the circumstances, increase
the award by the higher amount instead [EA 2002 s 38(3)]
- The minimum amount is equal to two weeks’ pay [EA 2002 s 38(4)(a)]
- There is a maximum weeks’ pay amount [ERA 2002 s 38(6)(a)]
Drafting a contract4
- The two most common types of contracts are fixed term and indefinite contracts
- Logical structure is to group like clauses together
o Definitions
o Start date, duration,5 job title,6 job description
o Salary and benefits7 (including pension)8
o Duties9
o Holiday pay, sick pay10
o Termination
o Signatures
Policies in the workplace
Key policies may include:
- Grievance, disciplinary and dismissal procedures 11
o Acas guide one of the main precedents
- Health and safety
- Whistleblowing12
Recommended policies include:
- Bribery
- Equal opportunities
- Data protection
- Family-friendly rights
- Flexible working
- Internet and email use
4
40
5
41
6
43
7
45
8
49
9
43
10
48
11
59
12
23
Page 3 of 50
, Legal status
- Contractual or merely guidance?
- Generally, the rules contained within policies are not appropriate as contractual terms, as
they do not bestow rights as contracts do
- Considerations
o The importance of the provision to the contractual working relationship
o The level of detail prescribed by the provision
o The certainty of what the provision requires
o The context of the provision
o Whether the provision is workable
- Keeley v Fosroc International Ltd [2006]
o Express incorporation of a policy does not necessarily mean that all the provisions
contained in that document were terms of the contract
o Some provisions, read in their context, may be declarations of an aspiration or policy
falling short of a contractual undertaking
o It is necessary to consider in their respective contexts the incorporating words and
the provision in question incorporated by them
Policy drafting
- Clear
- Comprehensive
- Compliant with the law
- Purpose
- Publication
- Policing
- Punishment
Drafting a whistleblowing policy
- Aim
- Who does the policy affect?
- What is whistleblowing?
- Who is a whistleblower?
- How to raise a concern
- Confidentiality
- Investigation and outcome
- Protection of and support for whistleblowers
- Sanctions
Page 4 of 50
