PH.D Zhanglinyi CHAPTER 8 Employment protection

PH.D Zhanglinyi 1 Continuity of service （工作连 续性） 1.1 The importance of continuity of service –The right of refusing redundancy and unfair dismissal are only available if an employee has a specified period of continuous employment. –Employment is presumed to be continuous unless the contrary is proved

PH.D Zhanglinyi – calculating length of service ( 计算工作时间） A week is a week during which he is employed for at least eight hours or in which his employment is subject to a contract which involves employment for eight hours or more. （雇员工作满 8 小时开 始，工作 1 周即为 1 周的工作时间） Some periods of absence are included in reckoning continuity and length of service 。 for example, when the employee is away from work sick or injured and they are then taken back on as an employee within 26 weeks of the contract being terminated 。（因病 等没有上班，没有上班时间也计入工作时间。） If the employee has worked in the same business before its transfer to his present employer his previous service may be counted.

PH.D Zhanglinyi 1.2 Transfer of undertaking （商业转让中劳务权益保护） – 商业转让 —— 公司转让给另一个人 –Transfer of undertaking include 2 points: There must be a real change in the ownership of the business. There must be continuity in the business before and after the transfer. –Employer can not compel employee to accept in the service of new employer. –If employee refuse to serve, it means resignation( 意味着辞职 ). Can not get recovering redundancy pay or compensation for unfair dismissal. –If he does go over to the service of the transferee of the business, the employee has continuity of service.

PH.D Zhanglinyi –A dismissal in connection with a transfer is automatically unfair. ( 商业转移中的解雇 automatically 意 味着 unfair ，也就是说可以要补偿 ) –The only exception to dismissal being unfair is if the dismissal is for an economic, technical,organisational reason. （唯一的例外就是 economic, technical,organisational reason dismiss, 这就不会认 为是 unfair ） 但是，什么是 economic, technical,organisational reason, 目前还不清 楚.(clear-cut)

PH.D Zhanglinyi 2 Discrimination at work Discrimination –is the practice of treating one or more members of a specified group in a manner that is unfair as compared to the treatment of other people who are not part of that group. – not restricted to the period of employment ， may in recruitment stage.

PH.D Zhanglinyi 2.2 Sex discrimination –The Sex Discrimination Act 1975 prohibits discrimination on the grounds of gender against any employee, male or female, in recruitment, promotion, training, benefits or dismissal. –Direct discrimination occurs where an employer or prospective employer treats an employee or job applicant less favourably than another on grounds of sex. –indirect forms of discrimination such as imposing a qualification for promotion with which fewer women than men could comply unless the job demands it.

PH.D Zhanglinyi Section 7 of the Act(The Sex Discrimination Act 1975 ) gives permission to discriminate if there is sufficient reason. （第 7 章允许歧视） In some jobs, it is accepted that male sex is a 'genuine occupational qualification' (GOQ). –Eg: An advertisement for a job abroad in a country whose laws and customs might make it difficult for a woman to perform her duties would be acceptable. 比如华为外派非洲，男性优先 Decency may require a male attendant in a male lavatory （男卫生 间） or sports facilities.

PH.D Zhanglinyi 2.3 Developments in sex discrimination legislation –The Sex Discrimination (Amendment of Legislation) Regulations 2008 provides for employer liability for sexual harassment and benefits for women on maternity leave (such as pension and insurance rights, maternity leave and holiday entitlement).

PH.D Zhanglinyi 2.4 Race discrimination 种族歧视 2.5 Disability discrimination 残疾人歧视 2.6 Discrimination on grounds of religion or belief 宗教信 仰歧视 2.7 Discrimination on grounds of sexual orientation 性取 向歧视 2.8 Age discrimination 年龄歧视 –Prevents employers requiring employees to retire at 65. 英国取 消了 65 岁强制退休制度，所以雇主要求 65 岁退休就是 age discrimination.

PH.D Zhanglinyi 2.9 Trade unions –Employers may not discriminate against employees for joining an independent trade union or refusing to join a workplace trade union. It also applies to taking part or refusing to take part in trade union activities.

PH.D Zhanglinyi 2.10 Remedies for discrimination –within three months of the discrimination taking place, employee should sue. 歧视发生 3 个月内，必须上诉 –Tribunal action 法院裁决 (a) Compensation. (b) Recommendation that the employer take action to correct the situation or limit the damage done to the applicant. (c) Appointment of an official from the Advisory, Conciliation and Arbitration Service (ACAS) （咨询仲裁服务中心） to try to work out a settlement between the two parties. – 法院不能做 Force the employer to promote someone Insist the employer takes on a job applicant （雇佣某人）

PH.D Zhanglinyi 3 Health and safety Under s 2 of the Health and Safety at Work Act 1974, it is the duty of every employer, as far as is practicable, to ensure the health, safety and welfare of all employees. In particular, they should: –Provide and maintain plant and systems of work which are safe and without risk –Make arrangements to ensure health and safety in relation to the use, handling, storage and transport of articles and substances –Provide adequate information, instruction, training and supervision –Maintain safe places of work –Ensure there is adequate access in and out –Provide a safe and healthy working environment.

PH.D Zhanglinyi 3.3 Enforcement of health and safety conditions –The responsibility for making health and safety regulations rests on the government——A Health and Safety Commission （国家职业健康与安全委员会 ） oversees the working of the system. Its members include representatives of employers' organisations and of trade unions.

PH.D Zhanglinyi 3.4 Employment protection –Where there is a breach of health and safety rules, whether by employer or employee, this is usually regarded as serious by tribunals. In certain instances, employees have successfully claimed constructive dismissal. （变相解雇） (a) Where an employee needed safety goggles （护目镜） which could be worn over normal spectacles and the employer ignored repeated requests for such goggles: British Aircraft Corporation v Austin (b) Where an employee was obliged to work in very cold conditions:

PH.D Zhanglinyi 3.5 Employers‘ liability （雇主责任） –Employees may bring claims under the tort of negligence （过失侵权） against employers for: The employer‘s own acts （雇主自身行为） Acts of employees which the employer is vicariously liable for （员工 行为，但雇主承担替代责任） –They must take care in selecting, training and advising other employees and to dismiss those whose behaviour presents a risk to others 。 –They must take care in providing equipment and working materials and maintaining working equipment 。 –Provide a safe system of work for staff.

PH.D Zhanglinyi 3.6 Social security –Other financial protection is available for employees injured at work or unable to work. Statutory sick pay and incapacity benefit whilst away from work Disablement allowance if 'loss of faculty' is over 14% Other supplements are available to dependants. –Where compensation is paid to the employee, the government can recoup social security payments paid （政府补偿 social security payments 给雇主） in the last five years from the compensation payment.

PH.D Zhanglinyi 4 Dismissal 4.1 Termination by notice Where employment is terminated by notice the period given must not be less than the statutory minimum. （要终止雇佣，必须提前通 知，提前时间不少于法定最低时间） It may be given without specific reason for so doing （终止并不需要 特别理由）, unless the contract requires otherwise Where notice periods are not specified in the contract, reasonable notice should be given （通知时间没有约定，那么通知时必须 reasonable ）. This is usually regulated by reference to trade practice, length of service and importance of the position the employee was employed to perform.

PH.D Zhanglinyi Notice due from employers ( 雇主通知） – An employee who has been continuously employed for one month or more but less than two years is entitled to not less than one week‘s notice. 不少于一周通知 – An employee who has been continuously employed for two years or more but less than twelve years is entitled to one week‘s notice for each year of continuous employment. 按一周乘 以服务年数 –Any employee who has been employed for twelve years or more is entitled to twelve weeks' notice. –Garden leave 离职前带薪休假 may be offered to the employee. This is where the employer pays the employee, who is no longer requiredat the workplace, in lieu of notice.

PH.D Zhanglinyi Notice due from employees –Employers are entitled to one week's notice after one month of employment otherwise notice is the period specified in the employment contract.

PH.D Zhanglinyi 4.2 Termination by dismissal –Summary dismissal （即时解雇） and constructive dismissal （变相解雇） are both examples of dismissal without proper notice. –4.2.1 Summary dismissal Summary dismissal occurs where the employer dismisses the employee without notice. He may do this if the employee has committed a serious breach of contract and, if so, the employer incurs no liability –4.2.2 Constructive dismissal Constructive dismissal occurs where the employer, although willing to continue the employment, repudiates some essential term （拒绝 某些条款） of the contract and the employee resigns （员工辞职）. The employer is liable for breach of contract.

PH.D Zhanglinyi –To establish constructive dismissal, an employee must show that: His employer has committed a serious breach of contract (a repudiatory breach). He left because of the breach. He has not 'waived' the breach, thereby affirming the contract. –Examples of breaches of contract which have led to claims of constructive dismissal include the following. A reduction in pay A complete change in the nature of the job A failure to follow the prescribed disciplinary procedure A failure to provide a suitable working environment

PH.D Zhanglinyi 5 Wrongful dismissal （非法解雇） 5.1 Introduction Wrongful dismissal is a common law concept arising in specific circumstances and which gives the employee an action for breach of contract, for example where insufficient notice has been given All employees, regardless of the length of employment, are entitled to claim wrongful dismissal but claimants have a maximum of six years to bring a claim. （最长 6 年上诉期） 5.2 Justification of dismissal （合法解雇） – 员工可能有以下情况 Wilful disobedience of a lawful order. Misconduct, Dishonesty, Incompetence or neglect, Immorality, Drunkenness, Gross negligence （重大过失）

PH.D Zhanglinyi 5.3 Remedies for wrongful dismissal –the only effective remedy available to a wrongfully dismissed employee is a claim for damages based on the loss of earnings. The measure of damages （损失 测量） is usually the sum that would have been earned if proper notice had been given. There is no limit to the amount of compensation available so this remedy is often used by those in senior positions who have large salaries. –the wronged party is expected to mitigate his loss

PH.D Zhanglinyi 6 Unfair dismissal –Difference between unfair dismissal and wrongful dismissal The remedies available following a successful action for wrongful dismissal are limited to damages compensating for the sum which would have been earned if proper notice had been given. Unfair dismissal allows for a number of other remedies as well.

PH.D Zhanglinyi 6.2 Scope –Certain categories of employee are excluded from the statutory unfair dismissal code. persons ordinarily employed outside Great Britain ( 在英国以外工作 ) Employees dismissed while taking unofficial strike or other industrial action Other categories, including members of the police and armed forces –In order to obtain compensation or other remedies for unfair dismissal the employee must satisfy several criteria. (a) Have been continuously employed for one year whether full-time or part- time. (b) Have been dismissed. In the case of constructive dismissal, the tribunal may have to determine this. (c) Have been unfairly dismissed. Dismissal may be unfair even if it is not a breach of contract by the employer. This is up to the tribunal to determine.

PH.D Zhanglinyi –In some cases, a person need not have been employed for the year to claim unfair dismissal. These exceptions are: Where a safety representative is being penalised for carrying out legitimate health and safety activities Where an employee is being denied a statutory right (for example an unlawful deduction from wages) Where the employee is pregnant

PH.D Zhanglinyi 6.3 Making a claim –To claim compensation for unfair dismissal, there are three steps ： Step 1 The employee must apply to a tribunal within three months of being dismissed. Step 2 The employee must show that （ 1 ） He is a qualifying employee, （ 2 ） and He has been dismissed Step 3 Then the employer must demonstrate: （ 1 ） What was the only or principal reason for dismissal （ 2 ） That it was a fair reason under the legislation

PH.D Zhanglinyi 6.4 What is dismissal? –Dismissal may be identified in three separate circumstances. Actual dismissal is usually fairly clear-cut and can be recognised from the words used by an employer. Constructive dismissal, as described earlier, involves a fundamental breach of the employment contract by the employer. Expiry of a fixed-term contract without renewal amounts to a dismissal.

PH.D Zhanglinyi 6.5 The reason for dismissal –Dismissal must be justified if it related to the employee's capability or qualifications, the employee's conduct, redundancy, legal prohibition or restriction on the employee's continued employment or some other substantial reason.

PH.D Zhanglinyi 6.6 Potentially fair reasons for dismissal –6.6.1 Capability/qualifications –6.6.2 Misconduct –6.6.3 Redundancy –6.6.4 Other substantial reason The employee was married to one of his competitors. The employee refused to accept a reorganisation, for example, a change of shift working, made in the interests of the business and with the agreement of a large majority of other employees.

PH.D Zhanglinyi 6.7 Automatically fair reasons for dismissal –Some reasons for dismissal are automatically fair. Taking part in unofficial industrial action Being a threat to national security (to be certified by the government)

PH.D Zhanglinyi 6.8 Automatically unfair reasons for dismissal – Pregnancy or other maternity-related grounds – Trade union membership or activities – Dismissal on transfer of an undertaking (unless justified by economic, technical or organisational reasons) – Taking steps to avert danger to health and safety at work – Seeking to enforce rights relating to the national minimum wage – Exercising rights under the Working Time Regulations 1998 – Refusing or opting out of Sunday working (in the retail sector) – Making a protected disclosure under the Public Interest Disclosure Act 1998

PH.D Zhanglinyi 6.9 Disciplinary process –employers and try to resolve all workplace disputes by following a process: Employees with a grievance against their employer, or employers initiating disciplinary action against an employee, must set out the basis of their complaint in writing. The written statement must be followed by a meeting between the two parties. Employees have the right to be accompanied by a colleague or a trade union representative. After the meeting the employer must tell the employee how the employee’s grievance is to be dealt with or what disciplinary action is to be taken The employee has the right to take the matter to an appeal

PH.D Zhanglinyi –6.10 Reasonableness of employer Even where the reason for dismissal is justified or automatically fair, the tribunal must also decide whether the employer acted reasonably in the circumstances. During an employment tribunal, employers must demonstrate 'reasonableness' in their dealings with the employee. – Consultation with employee to determine areas of difficulty –Following the ACAS Code of Practice (failure to follow the ACAS code will make employers liable for an additional 25% compensation or may reduce employees' compensation by 25%) –Allowing a reasonable time for improvement –Providing training if necessary – Considering all alternatives to dismissal

PH.D Zhanglinyi 6.11 Remedies for unfair dismissal – Reinstatement Reinstatement is return to the same job without any break of continuity 。 – Re-engagement Re-engagement means that the employee is given new employment with the employer (or his successor or associate) on terms specified in the order.

PH.D Zhanglinyi – Compensation A basic award –Those aged 41 and over receive one and a half weeks' pay up to a current maximum of £350 gross per week (for dismissals up to 1 October 2009) for each year of service up to a maximum of 20 years. In other age groups the same provisions apply, except that the age group receive one week's pay per year and the 21 and under age group receive half a week's pay. A compensatory award – (taking account of the basic award) for any additional loss of earnings, expenses and benefits on common law principles of damages for breach of contract: s 124. This is limited to £66,200 by the Employment Rights Act punitive additional award –If the employer does not comply with an order for reinstatement or re-engagement and does not show that it was impracticable to do so a punitive additional award is made of between 26 and 52 weeks' pay (again subject to the £350 per week maximum).