How Employment Law Has Adapted to the Modern WorkplaceElaine Goodwin
Employment law has changed considerably over the last twenty to twenty-five years and, whilst some of these changes have certainly been for the better, not all of them have proved to be so beneficial. Employment law is one of the fastest-changing areas of law there is and there will no doubt be many more significant changes again in the future.
This is not intended to be a chronology of employment law from the last two decades. Rather, we are going to explore just a snapshot of the legislation and how it has changed since 1995. We will refer to some of the most significant pieces of legislation to be enacted as well as how they have been interpreted in the tribunals.
The mid-to-late 1990s were certainly eventful, with a number of new and important pieces of employment legislation entering the legal stage. One of the most significant statutes to come into effect, some 25 years ago, was the Employment Rights Act 1996 (ERA 1996). The ERA 1996 consolidated many previous enactments relating to employment rights. Its birth was a major step forward in ensuring both fairness and certainty in the employment relationship and it is still, including all its amendments, pivotal to any employment lawyer’s and HR manager’s armoury.
The ERA 1996 provided, amongst other things, that employees now had the right to the provision of a written contract or written statement of particulars within two months from the commencement of employment.1 In the absence of an employment contract, the purpose of the written statement of particulars was to ensure employees had written confirmation of key terms of their employment. For example, their rate of pay and hours of work.
Under the ERA 1996, employees also had the right to reasonable notice before their contract of employment could be terminated by their employer. This obligation to provide reasonable notice was to now apply whether or not there was a provision in the employee’s contract of employment. This was and still is termed ‘the minimum statutory notice period’ and, unless the employee’s contract of employment provides for a greater notice period, the minimum statutory notice applies. What will be ‘reasonable’ as to the actual level of statutory notice afforded to an employee depends on the particular employee’s complete years service. It could be anything from one week’s notice up to a maximum of twelve weeks.
In addition to these above-mentioned rights was the provision of a right to receive an itemised pay statement from the employer. This may seem like a trivial change (and one which we now take for granted) but there was a time when it was commonplace for employers to simply provide a little brown envelope containing an employee’s weekly wage with no information relating to tax, national insurance or other deductions. Imagine not being able to work out what you had earnt and what had been deducted. It would certainly make it difficult to check you were being paid
1 The obligation to provide a written statement of particulars was enhanced recently and, since 1 April 2020, employers must now provide the written statement to employees from day one of their employment. The written statement of particulars must also now include more information,
properly. On the subject of wages, the ERA 1996 also included ‘protection of wages’ provisions which, amongst other things, included the right not to suffer unlawful deductions from our wages. This meant employers were no longer able to make deductions from your wages without specific provisions for it in your contract of employment or, failing that, your specific consent. No more docking wages because you accidentally smashed a wine glass or made a mistake or, at least, not without your agreement. It is worth noting that one of the claims that is often made, particularly where employment relationships break down, is that of unlawful deductions from wages (usually because the employee has not been paid for their untaken holidays at the end of their employment, or has not received their correct final pay).
There is little doubt that the most relied upon sections of the ERA 1996 are those related to the insurance of an employee’s right not to be unfairly dismissed. These provisions include the obligation on the employer to give a fair reason to the employee before any dismissal. A fair reason for dismissal must be one of those set out in the Act itself (and, for the record, not liking one of your employees is unlikely to be fair reason!). Furthermore, the employer is obliged to follow a fair procedure before terminating an employee’s contract of employment. Gone are the days when an employer could tell their employee to pack up and leave simply because they did not like the employee’s attitude – not without repercussions, at least.
The idea that an employee must not be unfairly dismissed has been tested in the courts on many occasions; however, Jhuti v Royal Mail Group Limited 2 is an example of one such legal challenge that made its way to the highest court in the UK, the Supreme Court. The case primarily dealt with the reason for Jhuti’s dismissal by Royal Mail. The employer’s reason for dismissal was, on the face of it, reasonable: they argued that her performance was less than satisfactory. However, Ms Jhuti’s argument was that the reason given was not the real reason she was being dismissed. Ms Jhuti had, in fact, made a protected disclosure (see whistleblowing below for more on this) relating to her employer. Dismissing an employee because they have made a protected disclosure under whistleblowing provisions is, generally speaking, an automatically unfair dismissal. The decision of the Supreme Court was that:
“if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason… the reason for the dismissal is the hidden reason rather than the invented reason.” 3
In essence, the Supreme Court held that the employer should carry out a thorough audit of the decision chain to ensure there is no hidden reason for the dismissal. Another piece of legislation with wide-reach impact is the Working Time Regulations 1998 (WTR 1998). Unlike the ERA 1996, this law was devised not in the UK but, rather, it is a law that was adopted by the UK, from the European Union as a means of enhancing health and safety in the workplace. After all, an exhausted workforce is a potentially dangerous workforce.
With the WTR 1998 came a number of key changes to employment practices relating to working hours. These included, amongst other things:
- the adoption of a 48-hour maximum working week;
2  UKSC 55
3 Jhuti v Royal Mail Group Limited  UKSC 55
- the ability for employees to opt out of that 48-hour maximum working week;
- the introduction of daily rest periods;
- the introduction of weekly rest periods; and
- the introduction of rest breaks
The WTR 1988 put restrictions and obligations on the way many businesses were run and, although there was the right for employees to opt out of the 48-hour maximum working week, employers still had other obligations to meet under the regulations. The regulations also gave employees the right to take a minimum of 4 weeks’ annual leave as well as the right to holiday pay – the idea of working without the prospect of a paid holiday seems unimaginable now.
In addition to providing for paid holidays, another key change came with the enactment of the National Minimum Wage Act 1998 (NMWA 1998). This Act laid down the minimum amount of pay a worker must receive (at the time, per household). This was, and still is, based on a worker’s age and also provided a designated rate of pay for apprentices. Following the introduction of the NMWA 1998, it is now a legal requirement for employers to pay their workers the national minimum wage (NMW) applicable at the time. The rates of the NMW continue to be set by the Government and usually changes in April each year.
The next important milestone came with the changes made to parental leave. It is hard to contemplate now but, under the ERA 1996, although employees had the right to request flexible working, they had to meet the strict criteria. This meant that unless your need for flexible working related to caring for a dependent, you had no right to apply. Under the Maternity and Parental Leave etc. Regulations 1999 (MAPLE 1999), however, parents were now able to take unpaid leave to care for a child up to the age of 5 years. Traditionally, this was an option only available to a mother, who could take paid time off work to look after a new-born. Amendments to the regulations, in April 2015, though now mean that that most couples (who are in paid work and raise a child together) can share the parental leave following the birth or adoption of their child. Until then, fathers really did draw the short straw, being allowed just two weeks leave (paid at a statutory rate). The right to parental leave became much more accessible and, in addition to allowing parents to share parental leave (following the 2015 amendments to the regulations) the regulations also now apply not only to biological parents in work, but also to: adoption, same-sex couples, co-habiting couples, and couples bringing up a child together who is from one of the parent’s previous relationships.
Further changes around flexible works came following the enactment of the Flexible Working Regulations 2014 (FWR 2014). These regulations meant that all employees (provided they had at least 26 weeks’ service) could request flexible working. Previously, employees only had the right to request flexible working if they were responsible for the care of a dependent. The important changes made by the FWR 2014 were brought about with a view to improve work/life balance, a very modern view of working life and one which was brought to the forefront of many workplaces following the COVID-19 pandemic and the nationwide lockdown that resulted. The days of the ‘nine to five’ may well be numbered with compressed hours and agile working waiting on the horizon – an idea tested in the case of King v Tesco Stores Plc. 4 Mr King, a driver for Tesco Stores plc, wished to change his usual working hours. He therefore produced a written flexible working request, which he handed to his manager. His employer said she had never seen a flexible working request before and so she refused to take it. King then tried to give the request to his
4 King v Tesco Stores plc UKET 2301268/2017
temporary team manager who, again, refused to take it. Eventually, King found an assistant manager who agreed to accept the request and King was told he would receive a response within the three months they were permitted to consider the request. Despite chasing his employer, King did not receive a response to his flexible working request and so he initiated the Early Conciliation procedure with ACAS. 5 A meeting was finally held, some five months after King’s initial request, but the request was declined. The employer failed to provide King with the right to appeal the decision (which he was entitled to under FWR 2014). King then issued a claim for a breach of the FWR 2014 and this was successfully upheld by the Employment Tribunal. The Tribunal also held that the employer had failed to follow the ACAS Code of Practice on handling such a request and King was awarded a sum equal to eight weeks’ pay.
We mentioned, earlier, the Juhti case and the idea of ‘protected disclosure’. Imagine, for a moment, that you work for an unscrupulous manager who (in order to make a profit) practises under-handed work practices. Now, imagine that you decide to report those practices to the business owner (your employer) only to be dismissed because you dared to speak out against your manager. Under the Public Interest Disclosure Act 1998 (as amended by the Enterprise and Regulatory Reform Act 2013), workers now benefit from protection against dismissal where they wish to make a ‘protected disclosure’ (commonly known as whistleblowing). Now, that does not necessarily mean going to the press or posting all over social media if you think your employer is doing something deceitful (as this may actually not be protected by the legislation in many cases) but, together, these two pieces of legislation provide a framework for how to report immoral/illegal behaviour in a way that protects you from being dismissed because of that disclosure. 6
Aside from the ERA 1996, the next most claimed under piece of legislation is the Equality Act 2010 (EA 2010). Whilst the EA 2010 did not bring about substantial changes to employment law, it did consolidate the myriad of anti-discrimination laws available to employees in the UK, including (amongst others) the Sex Discrimination Act 1975, Race Relations Act 1976, and the Disability Discrimination Act 1995. By consolidating and codifying anti-discrimination laws into one piece of legislation, the law was arguably made more accessible and certainly easier to navigate. The law now sets out a list of ‘protected characteristics’ and it is unlawful to discriminate against someone who meets the criteria under the Act and who is deemed to have a protected characteristic The Act also sets out the different types of discrimination as well as the law on harassment and victimisation. It contains the duty on employers to make reasonable adjustments where an employee is deemed to have a disability and the employer either knows about the disability or ought to have known (often because it is apparent). The EA 2010 also confirms that men and women (whether in full-time or part-time employment) should not be treated less favourably than each other in relation to pay, benefits and terms & conditions of employment, where the work they are doing is equal.
5 In order to make a claim in the employment tribunal, the parties must go through the ACAS early conciliation process (a form of mediation between employer and employee). It may be as simple as stating that the parties cannot resolve the dispute outside of the tribunal (in which case, ACAS will usually issue the certificate necessary to proceed to tribunal. However, in many cases, the early conciliation process can resolve matters without the need to go to tribunal.
6 For more information on whistleblowing and making a protected disclosure, please contact one of our specialist employment solicitors for advice and assistance.
The majority of the changes in law discussed here so far have, for the most part, provided welcome change; however, not all new laws are received so well. Probably the least popular piece of legislation, for employees and employment lawyers, was the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. This fee order saw the introduction of fees in respect of the lodging of claims and to take claims to a full hearing. Since its inception, and until July 2013 when the fee order came into force, the employment tribunal system was accessible without the requirement to pay a fee. The introduction of a fee system saw a steep decline in the number of cases in the region of 70-75%, not because employees did not want to claim but simply because they either did not see the worth in paying to lodge the claim or because they simply could not afford to (particularly when faced with loss of employment and a regular wage). Thankfully, tribunal fees were abolished some four years later, in July 2017, when the Supreme Court ruled them to be unlawful and unconstitutional.
Not all employment law changes have come about as a result of Acts of Parliament, however. Some key changes have been the consequence of landmark court cases. The Supreme Court’s decision to rule that tribunal fees were unlawful was one such example of this. One notable area of employment law which is undergoing change currently, much due to the decisions of the tribunals and appellate courts, is on the subject of employment status and the ‘gig economy’. Autoclenz v Belcher & Ors 7 was arguably one of the first such cases to deal with this. The claimants brought a claim in the employment tribunal, against the company they were contracted to work for, seeking a declaration that they were workers rather than being self-employed. In that case, the Supreme Court considered the nature of the claimants’ work and the wider relationship between the company they worked for and them. Considering the particular facts of the case, the Supreme Court held that the claimants were workers for the purposes of the NMWA 1998 and WTR 1998 and they were therefore entitled to, amongst other things, holiday and sick pay. This is an area which continues to show up in the press, with a number of cases being made by claimants working for the likes of Uber, Deliveroo and other businesses in the ‘gig economy’ sector, where the hiring of supposed self-employed contractors continues to be commonplace. This is certainly an area of employment law to keep an eye on.
There have been significant changes and amendments to a vast number of Acts and Regulations relevant to employment law, not least over the last decade or two. Indeed, far too many to refer to here; therefore, if you would like to obtain expert advice on any aspect of employment law, please contact our employment team on 01782 652300 or through our online contact form at: https://tinsdills.co.uk/about-us/contact-us/
7  UKSC 41