by Toni McAlindin, Employment Lawyer
A former President of the Employment Appeal Tribunal (EAT) once said that there was more written about employment law than any other legal subject. He said this “more in sorrow than regret” - that a subject which affects all of our everyday lives, whether as employees or as managers, should have become so complex. This is not a new phenomenon. Even the renowned Lord Denning was quoted as saying that maternity legislation was more complex than tax rules. Few would disagree.
There is a proliferation of journals, new articles, websites, law firms’ bulletins and of course a huge duplication of material. A new breed of consultant has appeared offering the latest advice on how to implement yet another government initiative. The manager fears to take a holiday in case the resulting deluge of paper greets his return.
Why should this be the case? There is little doubt that employment law is a major factor in everyday life. Whatever the political complexion of the Government of the day, all feel the need to make their mark on society by passing yet more laws. Equally, a considerable number of our laws have their origins in the European Union. This creates a complex picture as these laws are negotiated between 25 different countries with different legal systems, different industrial relations systems and different cultures. It is well-known that all of these impact on the final result but make the output often difficult to transpose into our own culture. And it is not just the European Union but also the European Court of Human Rights which has introduced a totally different dimension into our laws, leading to claims of political correctness and problems of anticipating any judgement.
A number of surveys commissioned by the CIPD found that, for the most part, employers agreed with a significant amount of employment law and felt that society was the better for it. In particular issues such as working hours, work/life balance, disability management were quoted. The picture is not quite so rosy for the small employer who may have to balance a number of needs in implementing such laws.
In addition, of course, the UK system is highly dependant on case law. With the range of courts from Employment tribunals through to the House of Lords – stopping at the Employment Appeal Tribunal or the Court of Appeal or Court of Session on the way and perhaps ending at the European Court of Justice or the European Court of Human Rights – it is not surprising that we see the current volume of caselaw. However such caselaw can have a major impact on well-established and well-used principles and on an organisation’s own policies and procedures.
Most organisations have undergone constant change processes. The Human Resources department has not escaped the upheaval. Much responsibility has been passed back to the line manager with many HR practitioners operating from an internal “call centre”. Managers can only undertake “people management” duties with proper training and advice. It is therefore imperative that such advice is simple, clear, accessible and easy to understand. Few managers will refer to Acts of Parliament, statutory instruments or regulations. They do not want to know which section of which act applies to a given situation but want a clear interpretation and course of action. Where they need to deal with complex legal issues, they need to know that their HR practitioner can respond quickly and confidently to any request.
Of course most HR practitioners recognise that there is rarely one answer – not least a simple answer. Any people issue can involve a range of scenarios and options – with attendant risks. Perhaps it involves contract law. It will certainly stand a good chance of involving discrimination law given its breadth and coverage whether of equal pay, maternity, part-time or flexible working or the range of gender, disability, race, sexual orientation, religion or the newer areas such as age – as yet untested. It might even be a transfer situation or result in redundancies. Perhaps there are data protection issues or what about whistleblowing? And wasn’t there a recent case on employment status etc etc?
It is not difficult to access the laws themselves but it is increasingly difficult to interpret the combination of laws and case law and apply them to a given situation. Time and time again practitioners decry the complexity of the law and the difficulty of applying it to everyday situations. A constant comment is its lack of practical application.
This manual is designed to do just that. It will provide CIPD members and the wider HR community, with an employment law product that allows the user to confidently implement and apply the law from just that practical perspective.
The CIPD has brought together experts in their field – not just those with detailed knowledge of the law but also of experience in applying the laws to a wide variety of situations to write these materials. In other words, they have been there and have dealt with situations described.
This is an “implementation-based” product ie it is not a reference book on current employment laws but provides information on implementing and complying with laws and building them into your own organisation’s policies and procedures.
It has been developed around four key themes ie
• Creating the employment relationship
• Maintaining the employment relationship
• Changing the employment relationship
• Terminating the employment relationship
It has been assembled in loose-leaf format, to allow for regular updates (6 times per annum) and users will receive a quarterly newsletter. Together these should ensure that users are kept uptodate on a regular basis.
It has been structured to give an overview of the law in each area with an indication of good practice, a checklist, an indication of likely problems and reference sources. It can be used as a basis for formulating policies and procedures or as a reference guide.
No one can predict whether the current torrent of employment law will continue. Sometimes it appears that there are no more topics to be covered, no more changes to make. It would be a fantasy to believe that there will not be change. No other area of law affects us so much.
Individuals have needs both within and outside of the workplace. Most seek a work/life balance so there will constantly be issues of flexible working, ageing society, pensions needs. Organisations will constantly need to adapt to a global society, will need a flexible workforce, will need to relocate, to downsize, to transfer work, to recruit overseas workers etc etc. The reality is, that as society changes, so too will the laws and cases which underpin that society. There has rarely been such a need for a practical tool to help employers and employees engage together in the workplace and it is highly likely that this will continue to be the case for the foreseeable future.