According to Barone (2001) with the acronym EPL, employment legislation refers to the entire set of regulations that place some limits to the faculties of firms to hire and fire workers, even if they are not grounded primarily in the law, but originate from the collective bargaining of the social partners, or are a consequence of court rulings.
In particular, provisions favouring the employment of disadvantaged groups in society, determining the conditions for the use of temporary or fixed-term contracts, or imposing training requirements on the firm, affect hiring policies, while redundancy procedures, mandated pre-notification periods and severance payments, special requirements for collective dismissals and short-time work schemes influence firing decisions.
Some aspects of these regulations, like the length of advance notices or the dimension of severance payments can be measured with precision. Other important features of EPL, like for example the willingness of labour courts to entertain appeals by fired workers, or how judges interpret the concept of “just cause” for termination, are much more difficult to quantify.
Below we'll be looking in depth at a few of the more important aspects of employment legislation, including:
- Equal Pay Act 1970
- Health & Safety at Work Act 1974
- Sex Discrimination Act 1975
- Human Rights Act 1998
Equal pay act 1970
So what is it? Well the Equal Pay Act 1970 was an Act of the United Kingdom Parliament which prohibited any less favourable treatment between men and women in terms of pay and conditions of employment.
For an employee to claim under this Act they must have proven one of the following:
- That the work done by the claimant is of equal value (in terms of effort, skill, decision and similar demands) to that of the other employee.
- That the work done by the claimant is the same, or broadly the same, as the other employee.
- That the work done by the claimant is rated (by a job evaluation study) the same as that of the other employee.
Once the employee has established that they are employed on 'equal work' with their comparator then they are entitled to 'equal pay' unless the employer proves that the difference in pay is genuinely due to a material factor which is not the difference in gender.
Health & Safety at Work Act 1974
The Health and Safety at Work etc. Act 1974 was an Act of the Parliament of the United Kingdom that as of 2011 defines the fundamental structure and authority for the encouragement, regulation and enforcement of workplace health, safety and welfare within the United Kingdom.
The Act defines general duties on employers, employees, contractors, suppliers of goods and substances for use at work, persons in control of work premises, and those who manage and maintain them, and persons in general. The Act enables a broad regime of regulation by government ministers through Statutory Instrument which has, in the years since 1974, generated an extensive system of specific provisions for various industries, disciplines and risks. It established a system of public supervision through aids the creation of the Health and Safety Commission and Health and Safety Executive, since merged, and bestows extensive enforcement powers, ultimately backed by criminal sanctions extending to unlimited fines and imprisonment for up to two years. Further, the Act provides a critical interface with the law of the European Union on workplace health and safety.
Objectives:
Section 1 sets out the objectives of the Act as:
- Controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances, and generally preventing the unlawful acquisition, possession and use of such substances.
- Securing the health, safety and welfare of persons at work;
- Protecting persons, other than persons at work, against risks to health or safety arising out of or in connection with the activities of persons at work;
As originally enacted, there was a fourth objective:
- Controlling the emission into the atmosphere of noxious or offensive substances;
but this provision was repealed when control of emissions was brought under a uniform scheme of legislation by the Environmental Protection Act 1990. In general, the other provisions about emissions in the original Act have subsequently been repealed.
Duties of employers
Section 2 states that "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his/her employees", and in particular that such a duty extends to:
- Provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
- Arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
- Provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
- So far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
- Provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
Section 3 states the duty of all employers and self-employed persons to ensure, as far as is reasonably practicable the safety of persons other than employees, for example, contractors, visitors, the general public and clients.
Employers must also prepare and keep under review a safety policy and to bring it to the attention of his employees. Trade unions may appoint safety representatives and demand safety committees. The representatives have a right to be consulted on safety issues. Since 1996 employers have had a duty to consult all employees on safety matters.No employer may charge an employee for provision of health and safety arrangements.
Duties of employees
Under section 7 all employees have a duty while at work to:
- Take reasonable care for the health and safety of him/herself and of other persons who may be affected by his/her acts or omissions at work; and
- Co-operate with employers or other persons so far as is necessary to enable them to perform their duties or requirements under the Act.
Duties of persons in general
Section 8 requires that "no person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions."
Enforcement
Because individual litigation is unlikely, given that employees may find the regulations complex, the Health and Safety Executive enforces the Act. However, the HSE may also delegate its functions to local government under section 18, which allows for a more decentralised and targeted approach to regulation. Any enforcing authority may appoint inspectors with a written document stating their powers. This is as evidence of their authority (section 19). Enforcing authorities may identify the inspector against any civil litigation if he has acted in the honest belief that he was within his powers (section 26). Local government bodies who may be enforcing authorities are:
- England:
- County Councils where there are no District Councils;
- District Councils;
- London Borough Councils;
- Common Council of the City of London;
- Sub-Treasurer of the Inner Temple;
- Under-Treasurer of the Middle Temple;
- Council of the Isles of Scilly;
- Scotland:
- Councils for a local government area; and
- Wales:
- County Councils or County Borough Councils.
Local government bodies can be enforcing authorities in respect of several workplaces and activities including offices, shops, retail and wholesale distribution, hotel and catering establishments, petrol filling stations, residential care homes and the leisure industry. As of 2008, 410 such bodies have responsibility in 1.1 million workplaces. From 1 April 2006 the Office of Rail Regulation (ORR) became the enforcing authority for the Health and Safety at Work etc. Act 1974 and laws made under it, for all health and safety matters relating to the operation of a railway (or tramway).
Sex Discrimination Act 1975
The Sex Discrimination Act 1975 was an Act of the Parliament of the United Kingdom which protected men and women from discrimination on the grounds of sex or marital status. The Act concerned employment, training, education, harassment, the provision of goods and services, and the disposal of premises.
The Gender Recognition Act 2004 and The Sex Discrimination Act 1975 (Amendment) Regulations 2008 amended parts of this Act to apply to transsexual people. Other amendments were introduced by the Sex Discrimination Act 1986, the Employment Act 1989, the Equality Act 2006, and other legislation such as rulings by the European Court of Justice.
The Act did not apply in Northern Ireland, however The Sex Discrimination Gender Reassignment Regulations (Northern Ireland) 1999 does.
The equal opportunities commission
The Sex Discrimination Act of 1975 established the Equal Opportunities Commission (EOC) whose main duties were to work towards the elimination of discrimination, to promote equality of opportunity between sexes and to keep under review the workings of the Sex Discrimination Act and the Equal Pay Act 1970.
What did it do to help? The EOC helped individuals bring cases to Employment Tribunals and to the courts. The EOC is now subsumed into the Equality and Human Rights Commission (EHRC).
Power
The EHRC are allowed to do the following:
- Give practical guidance and advice to persons who appear to have a complaint under the Acts.
- Commence a claim before an employment tribunal on behalf of an individual.
- Bring proceedings in respect of certain provisions and seek a court injunction to restrain the repetition of an unlawful act.
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.[1] Its aim is to "give further effect" in UK law to the rights contained in the Convention for the Protection of Human Rights and Fundamental Freedoms, but more commonly known as the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg.
In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of any other primary legislation provides no other choice. It also requires the judiciary (including tribunals) to take account of any decisions, judgement or opinion of the European Court of Human Rights, known as theStrasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with Convention rights. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty (see: Constitution of the United Kingdom). However, judges may strike down secondary legislation. Under the Act, individuals retain the right to sue in the Strasbourg court.
Structure of the act
The Human Rights Act places a duty on all courts and tribunals in the United Kingdom to interpret legislation so far as possible in a way compatible with the rights laid down in the European Convention on Human Rights. Where this is not possible, the court may issue a "declaration of incompatibility". The declaration does not invalidate the legislation, but permits the amendment of the legislation by a special fast-track procedure under section 10 of the Act. As of August 2006, 20 declarations had been made, of which 6 were overturned on appeal.
The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. However, it does not include Parliament when it is acting in its legislative capacities.
Section 3
Section 3 is a particularly wide provision that requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights which are also part of the Human Rights Act. This interpretation goes far beyond normal statutory interpretation, and includes past and future legislation, therefore preventing the Human Rights act from being impliedly repealed. Courts have applied this through three forms of interpretation, "reading in" – inserting words where there are none in a statute; "reading out" where words are omitted from a statute; and "reading down" where a particular meaning is chosen to be in compliance. They do not interpret statutes to conflict with legislative intent, and courts have been reluctant in particular to "read out" provisions for this reason. If it is not possible to so interpret, they may issue a declaration of incompatibility under section 4.
Sections 4 and 10
Sections 4 and 10 allows courts to issue a declaration of incompatibility where it is impossible to use section 3 to interpret primary or subordinate legislation to be compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act. In these cases, interpretation to comply may conflict with legislative intent. It is considered a measure of last resort. A range of superior courts can issue a declaration of incompatibility.
A declaration of incompatibility is not binding on the parties to the proceedings in which it is made, nor can a declaration invalidate legislation. Section 4 therefore achieves its aim through political rather than legal means.
Section 10 gives a government minister the power to make a "remedial order" in response to either
- a declaration of incompatibility, from which there is no possibility of appeal, or
- a ruling of the European Court of Human Rights
A remedial order may "make such amendments to the legislation as [the Minister] considers necessary to remove the incompatibility". Remedial orders do not require full legislative approval, but must be approved by resolutions of each House of Parliament. In especially urgent cases, Parliamentary approval may be retroactive.
Remedial orders may have retroactive effect, but no one may be guilty of a criminal offence solely as the result of the retroactive effect of a remedial order.
Section 10 has been used to make small adjustments to bring legislation into line with Convention rights although entirely new pieces of legislation are sometimes necessary.
As of April 2013, 28 declarations of incompatibility have been issued, of which
- 8 have been struck down on appeal
- 1 is pending appeal, as of April 2013
- 15 have been remedied through the ordinary legislative process (including amendment or repeal of the offending legislation).
- 3 have been addressed through remedial orders
- 1 has not been remedied.
The one case not to have been remedied, as of April 2013, is Smith v. Scott, concerning the right of serving prisoners to vote in the UK.
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