FAQs about Employment Law

BUSINESS EMPLOYMENT LAW GUIDE

Basics of age discrimination

Age discrimination in the workplace is against the law in almost all types of employment. It is the employers responsibility to have policies preventing discrimination and to ensure that everyone is protected.

The policy should protect all employees form age discrimination including recruitment, promotions, training and dismissals.

Different treatment of an employee’s age can be justified in some cases, for example in order to protect their safety.

Every employer must ensure that any recruitment  or redundancy policies are not directly or indirectly discriminatory against older employees. However, direct or indirect discrimination can be objectively justified if an employer can show that it was a ‘proportionate way of achieving a legitimate aim’.  ‘Proportionate’ means that the employer should have no other alternative when introducing an age-limit practice, for example when hiring for physical work. ‘Legitimate aim’ means business needs and efficiency.

What is redundancy?

The classic legal definition of redundancy is that the job which an employee does no longer exists or the place where the employee undertook his or her work has closed. However, as with all things legal this does not fully explain the circumstances of redundancy, legal implications or what happens in situations which do not fir exactly with the general definition.

Business relocation

This is where an employer moves, or intends to move, the place of business from the place where the employee was employed. The test here is where the employee worked, not where they could be required to work under their contract of employment. Whether the move is sufficient to warrant a redundancy situation is based on the distance between the old and new premises, and the level of inconvenience to the employee. Consultation is important with the employee for obvious reasons.

Closure of business

This is where an employer has, or intends to cease to carry on the business for the purpose for which the employee was employed. It also applies if the part of the business where the employee works is closed, but the rest of the business continues.

Reduction in available work

This is where redundancy situations become more complicated. There may still be a job and place of work for employees, but not enough work for all the employees. Consequently, the employer will need to look at all options, consult with employees, and make decisions based on sensible and reasonable, transparent criteria. As long as the employer can demonstrate that there is a genuine need to reduce the number of workers and has applied the above principles, it is not open to an Employment tribunal, in dealing with a claim for unfair dismissal by way of redundancy, to “second guess” an employer’s actions and decisions.

When a redundancy situation arises, the following steps should be followed.

  • Give employees sufficient advance warning of the impending redundancy situation in writing in the form of an ‘at risk’ letter. Ensure employees who are absent for whatever reason, including maternity and disability reasons, are also included.
  • In situations where work has diminished, decide on the potential pool of employees from which those to be made redundant need to be chosen by reference to the type of work and skills involved. It would be inappropriate to include administrative staff in the pool if the employer only needs to reduce shop floor workers.
  • consult with employees at all stages
  • Decide on the criteria to select the redundant staff, options include length of service but there are many other possibilities, they do need to be documented and justifiable though
  • Allow employees time to consider proposals and respond and be prepared to take on board employees suggestions
  • The employer must make genuine efforts to ascertain whether suitable alternative employment exists within the employing entity of any associated company. Suitable alternative employment, if available, should be offered during the course of the consultation process.
  • Before any dismissal it is important send a written statement to the employee setting out the reasons for selection for redundancy. The employee must be invited to attend a meeting with the employer, where they are entitled to be accompanied by a chosen representative. This is usually a work colleague or trade union representative.
  • After the meeting you must inform the employee of your decision and notify them of their right to appeal the decision.

Disciplinary and Dismissal Procedures

Employers are required by law to go through certain disciplinary procedures before dismissing an employee.

Even if you have a fair reason for the dismissal, you may be liable for unfair dismissal if you do not go through the correct procedure.

A fair procedure should, at the very least, include the following :

  • You should carry out a reasonable investigation before making a decision
  • You should arrange a disciplinary hearing at which the employee is given the opportunity to state their case
  • The employee should be notified of the hearing and the reasons for the hearing in writing
  • The employee should be given the right to bring a colleague to the hearing
  • You should consider other lesser forms of discipline
  • You should notify the employee in writing of the termination of employment and the reasons for it.
  • The employee should be notified of the right to appeal against the decision.

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