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There are a number of laws and regulations in place which are extremely useful to know and that ensure each and every one of us is entitled to the same rights, with regards to work.
There are important issues that people should be aware of from a legal perspective when applying for a job, particularly given the introduction of the Equality Act 2010 (EA 2010) at the beginning of October 2011.
Under the EA 2010, employers are prohibited from discriminating against job applicants because of any of the following “protected characteristics”:
Under section 39 of the EA 2010, an employer (A) must not discriminate against or victimise a person (B):
The “arrangements” referred to in the first bullet point could include such things as the format and content of job application forms, the location and timing of interviews and the job requirements.
For example, a company that proposes an interview in a building with no disabled access could be discriminating against disabled applicants.
Companies must make reasonable adjustments to ensure that they do not discriminate against disabled applicants.
Similarly, a company that does not offer a choice of interview times could be discriminating against female applicants with childcare commitments.
Unlawful discrimination can be direct or indirect. Direct discrimination means treating someone less favourably because of a protected characteristic – for example, a sexist employer who does not give a female applicant a job because she is female.
Indirect discrimination means applying an apparently neutral criterion that disadvantages a group of people who have a protected characteristic and which cannot be objectively justified – for example, an employer who requires applicants to pass a fitness test in relation to a job that is largely desk-based. This is likely to disadvantage applicants with a disability and also older applicants.
Companies must not victimise applicants because they have previously made a complaint in relation to discrimination or assisted in someone else’s complaint or done anything to uphold their equality rights or those of someone else.
A company will be in breach of the EA 2010 if it discriminates against or victimises an applicant based on a belief that the applicant has a particular protected characteristic – for example, if a homophobic employer does not offer a job to an applicant because he thinks that the applicant is gay, even though the applicant is not in fact gay.
Companies must not discriminate against applicants who are associated with someone with a protected characteristic, such as an applicant with a disabled child.
Companies must not harass job applicants. Telling sexist jokes in an interview with a female applicant, for example, could constitute harassment.
Under section 60 EA 2010, employers are not allowed (except in the limited circumstances below) to ask job applicants about their health before they have offered them a job or included them in a pool of successful candidates to be offered a job when a position becomes available. This includes the employer asking questions to the applicant directly or asking a previous employer. Health questions include questions regarding current state of health and any previous sickness or sickness absence record at a previous job.
An employer can only ask questions about health before offering a job in the following circumstances:
An employer asking a prohibited pre-employment health question will not, in itself, amount to unlawful disability discrimination against you as a job applicant (although it is an unlawful act in respect of which the Commission for Equality and Human Rights can take action).
However, if the employer acts on your response to a prohibited health question to your detriment, this may amount to unlawful disability discrimination allowing you to bring an Employment Tribunal claim.
The employer’s conduct in relying on the information given in response to a prohibited pre-employment health question will also count as facts from which an Employment Tribunal could conclude that the employer was guilty of disability discrimination.
The Data Protection Act 1998 provides a number of legal rights relevant to job applications.
When applying for a job, you may be asked for information relating to protected characteristics, usually as part of the employer’s equal opportunities monitoring policy.
This information is usually requested in a separate form to the application. The company should make clear that this information is not being used to assess your application and should, of course, not act on the information to discriminate against applicants.
The company should make you aware of what personal data of yours that it plans to store, the length of time it will be stored and whether or not it plans to share it with any third parties.
If you are unsuccessful in your application, the company should notify you if they plan to keep your personal data on their records and inform you of your right to request that it is removed.
If you are an agency worker, you are entitled to be provided with information about job vacancies within the hirer from the first day of your assignment.
Recruitment agencies are prohibited from charging you a fee for finding you work (unless you are in the modelling and entertainment industry, in which case commission can be charged on your earnings from work that the agency has found you).
The National Minimum Wage (NMW) was introduced in 1999. It gives workers the right to a specified minimum hourly rate of pay. Employers are obliged to pay at least the NMW to workers.
The National Minimum Wage Act 1998 applies to “workers” working in the UK who are over school leaving age. A “worker” is an individual working under:
There are very few exceptions, so you are very likely to qualify as a worker during a period of work experience or under an internship or apprenticeship arrangement and you would therefore be entitled to the NMW.
Take your total gross pay and divide it by the number of hours you have worked in the relevant pay reference period. This is explained below:
Pay reference period
The pay reference period for calculating your hourly pay is one month, or if you are paid by reference to a period that is shorter than one month, that period. If you are paid less frequently than every month, your employer must ensure that you are still receiving at least the NMW each month.
When calculating your average hourly rate, all payments earned in relation to the relevant reference period should be taken into account, regardless of when you actually receive them.
The calculation of the hours you have worked during the reference period will differ depending on which of the following 4 defined categories of work you do:
Your employer is obliged to keep records of the hours you have worked and payments made to you to establish that they have paid you at least the NMW.
Legally, the employment contract is at the heart of every employment relationship. Even if nothing has been written down, there will still be an employment relationship when one person works for another. So it’s important to have a basic understanding of the main points.
Contract terms can come from several different sources, including the following:
Section 1 of the Employment Rights Act 1996 requires employers to provide employees with a written statement of the basic terms of employment no later than two months after the start of employment. A section 1 statement can be provided in the form of a statement, a letter of engagement or a contract of employment. The required particulars are listed below:
Names of employer and employee
The date the employment starts and the date the period of continuous employment began
Job title or brief description of the work
Normal place of work
Pay and the interval of payment
Hours of work
Holiday entitlement and holiday pay
Information on disciplinary and grievance procedures
The above is the minimum that your employer must provide you with. The information must be contained in one written statement which must be given to you within two months of the start of your employment. Your employer must also provide you with the additional information below either in your statement or in your offer letter or contract, or it may be provided in a supplementary statement or other reasonably accessible document, such as the Employee Handbook.
Termination and notice period
Sickness absence and sick pay
Disciplinary and grievance information
Implied terms are not written or verbally agreed between the parties, they are implied by law into the employment relationship. However, implied terms may be modified, extended or excluded by any express term in the contract.
Your employer has an implied duty, for example, to provide you with work if it is available to be done, to pay your wages and to give you reasonable notice of termination (if length of notice is not stated in the contract).
You have an implied duty, for example, to serve your employer with good faith and fidelity, to exercise reasonable care and skill and not to disclose confidential information or trade secrets.
The most important implied term is the duty of mutual trust and confidence between you and your employer. The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. For example, a manager bullying an employee would be a breach by the employer of the implied duty of mutual trust and confidence.
Can your employer change the terms of your contract?
If changing your terms of employment is not authorised under your contract, your employer could:
If the proposed change is to your detriment, your employer will need to provide you in return with consideration (i.e. something of value) for the change to be legally binding.
The Employment Rights section has been prepared by Salans, an international law firm, and covers a range of important topics which affect all eligible workers, whether already employed or looking for a job.