Workers become employees when they submit to the instructions of an employer in return for a wage. In history the employee has been weak and subject to exploitation. Governments have legislated to protect the employee.
Today, the primary statutes governing the relationship are the Employment Rights Act 1996 and the Equality Act 2010. The relationship is now better balanced and employers must tread carefully.
Employment law is concerned with the economic or transactional element of the employment contract. TimelessTime consultants are trained in employment law. Here are some of the issues they will consider.
The economic and transactional element of the relationship between employer and employee is defined by a legally binding contract. Part of this contract is defined in statute and part is expressed in documents exchanged on commencement of the employment. This contract is complex for managers to understand and yet ignorance is no excuse if employees challenge.
For most managers employing people in the UK, English law will apply to the employment contract. For those in Scotland, Wales and Northern Ireland, the statutes above apply, though there are some slight differences in regulations.
However, many employees work abroad. When attempting to resolve an employment dispute, the manager must first decide on the choice of law that applies - the law of the employer or the law of the country in which the employee normally works.
Generally, there must be some substantive reason why English law and UK statutes would apply to employees of a UK firm working abroad for some or all of the time - the employee must have some strong connection with the UK for a tribunal to hear a case.
Generally, the rule is that the place of work determines the employment law that applies and hence which country has jurisdiction over the employment contract. And given this, it's even possible for a UK tribunal to hear a case under foreign employment law.
The employment contract is determined through process. Employees work and get paid. Managers give instructions on behalf of the employer. And when irregularities occur, both parties turn to accepted policies and procedures for guidance. Adherence to sound policies and procedures is essential if employers are to be able to claim they are being fair. Fair treatment gives employers protection.
When employees depart from contractual commitments and norms, employers use the contract to manage their behaviour. Where necessary, employers can dismiss employees. When the employer does not proceed fairly, employees have recourse to petition an employment tribunal. Tribunal settlements can be punitive, ranging from £70k to over £1m so managers must tread carefully.
Managers must first put in place a sound employment contract when each employee starts work. All employment decisions and processes used to reach decisions are based on that contract. The documents enabling the contract include the contract of employment itself, the offer letter, the staff handbook and all the policies and procedures that describe how employer and employee will work together day to day.
This document set, if suitably complete and robust, should be all that’s needed for managers to meet their obligations for fair treatment of staff. Sometimes, however, situations are more complicated and knowledge of both the law and management science is essential to resolve the issues. TimelessTime consultants have the qualifications and experience to help you in employment law – from document development through meetings to defence at tribunal. They are also qualified and experienced managers.
Few managers are expert in employment law. Employment law is enacted through process.
Managers must get help early in that process. For managers, problems typically occur in employees’ absence, poor behaviour, poor performance, breach of confidentiality, breach of covenants or misappropriation of the company’s property. Situations are made complex where employees can be classified disabled. Many maladies are disabilities. For employees, problems typically occur when managers don’t act and let issues fester, dismiss employees for weak reasons, behave unfairly, tolerate or engage in bullying and harassment or don’t uphold their part of the contract.
The economic and transactional element governed by employment law describes only a small part of the relationship between employer and employee. By far the largest part is in what’s termed the psychological contract. It’s essential that statute and contract are complied with, but it’s one thing to be legally compliant and something very different to make good management decisions. By making good management decisions, most managers will be legally compliant but the converse is unfortunately seldom true. The psychological contract is tacit, unwritten, and covers all the expectations and hopes that employee and employer have in one another. The psychological contract trumps the economic and transactional legal contract when determining behaviour of the parties.
Solicitors and barristers understand the law but are untrained in management science and seldom have actually worked in firms other than their own. Solicitors and barristers are however a useful addition to our team in complex cases.
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By working jointly with the TimelessTime consultants, my HR team learned about the theoretical underpinnings of salary and benefits and hence came to understand the the new system from the outset.
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