Employment law (EML) assessment activity 1 template

TUPE due diligence – briefing document

Word count: 3294

Name: Muhammad Naeem

Membership Number: 56638765

Facilitator: Lynne

Introduction
1.1 The aims and objectives of employment regulations
To Administer Social justice
Social justice gives all the employees equal chances to make their contributions towards the
growth of their organizations. For instance, the Human Rights Act aims at providing open
dialogue platforms where individuals can raise different issues without fear of being victimized.
This contributes a lot towards giving employees a sense of being free and well cared for when
working.
To hitch a healthier Economic environment for the business.
The employment regulation’s purpose to ensure that there is the right economic environment for
both the employers and employees to thrive (Lewis & Sargeant, 2019). Through this objective,
the ACAS guide aims to ensure that employees benefit from their salaries to deal with different
financial obligations. On the other hand, the Acas guide provides that the employers need to
reimburse employees fairly and still make profits.
To instill fairness
Employment regulation aims at facilitating a working environment where there is optimum
fairness. The productivity and motivation of the employees are usually high. For instance, the
Equality Act 2010 has a primary objective of protecting workers against any form of
discrimination and offers them the right to seek a healthy working environment.
1.2. Enforcing employment law
The tribunal and court system update the employment laws as time changes. For instance,
ACAS enforces new rules that ensure employers and employees relate harmoniously. ACAS
supports employees who are victimized and helps address reforms and other forms of industrial
actions in workplaces.
Tribunal and court systems enforce employment law by influencing case and appeal decisions.
While the appeal court is making decisions, case law plays an integral role in references to past
events. The judges and participants usually refer to past cases and the judgments that were made.
This helps in making consistent decisions that ensure employees in different fields are treated
fairly.
Employment tribunals provide a structure for dispute resolution based on the facts presented by
parties. For instance, ACAS is responsible for contacting an employer and seeking the possibility
of informal settling of the dispute without involving the courts. It offers an employer the option
of applying a conciliator or facing the case before the tribunal. Failure to settle the matter outside
courts provides a legal process through the tribunal, where the employee files claims with
adequate facts for determination.
The court system involves civil courts to seek their determination of cases involving
infringement of the employment law. Furthermore, the court systems involve the appeal for a
tribunal or a civil court's unfair decisions. A claimant might appeal for a legal mistake to the
Employment Appeal Tribunal (EAT) if a tribunal case was unfairly determined or failed to
follow correct procedures. The Court of Appeal guides the mandate of EAT and provides an
opportunity for appeal of points determined by civil courts.
3.3 The Main Requirements of the Law in Business Transfer
TUPE (2006) defines the laws that govern the transfer of businesses. TUPE represents a transfer
as the changing of business ownership from one party to another. TUPE ensures that the
employees do not lose their employments and are not mistreated by the new owners. TUPE
considers the provisions of Transfer of Undertaking (Protection of Employment) Regulations
(2006) by involving the transfer of employment contracts to the original seller, protection from
unfair dismissal, and assumption of all responsibilities of the seller by the new employer
regarding the employees' terms of service (Transfer of Undertaking (Protection of Employment)
Regulations 2006 (Kerr & Radford 1994). Here are the main requirements as stipulated by
TUPE;

 The transfer agreement should be written down and signed by all the parties involved.
 There should be an exact reason why the transfer is happening.
 The transfer documents should show the likely changes after the business has been
transferred to ensure their jobs.
 All tax compliant documents should be availed.
 There should be a specified date when the transfer will happen.
 The people doing the transfer should have the legal ability to do the transfer without
breaking any law.
The employees are almost guaranteed of continuation of employment. Contracts signed by the
former employees are just transferred to the new owners without anything being changed. The
law also considers that the employees are not responsible for the transfer, and as a result, they
deserve to be protected in all ways.
Therefore, Peter has to apply TUPE provisions during the transfer by informing the employees'
representatives about the changes happening to the organization. Accordingly, Peter should treat
the employees working at Zulu's just how they were being treated by their former employer and
make sure that all the employees' representatives were informed about the changes within the
shortest time possible.
Risks to Hell’s Kitchen
2.1 How Discrimination Can Come Into Recruitment and Selection Activities And In
General Employment. (2.1)
Discrimination comes into recruitment and selection activities and in general employment when
the responsible individuals breach the principles of discrimination law (Purcell, 2013). For
instance, Section 5 of The Employment Act prohibits employers from discriminating against
their employees based on gender or age during recruitment.
Equality Act 2010 defines the principle of direct discrimination as treating an employee less
favorably compared to others because of having specific characteristics. An example of this is
denying an employee a promotion despite being qualified because race or gender. This principle
covers two main areas;

 Associative discrimination- An employee is treated in a certain way because of having

certain protected qualities.
 Perspective discrimination – An employee being mistakenly associated with certain
protected qualities.
The principle of indirect discrimination is when a decision seems to be treating everyone fairly,
but the results treat some people unfairly. An example is when an employer requires employees
to wear light and short clothes while at work. Still, it is against the religious believers of Muslim
women working in the organization. This commonly happens in the hotel industry and marketing
industries where women might be required to wear suggestive but decent clothes to get the
customers' attention.
Discrimination can easily be applied in the recruitment and selection process when the
employers fail to recruit a person because of having specific characteristics even if they are
adequately qualified. An example is a company refusing to employ older but qualified candidates
because it wants to appeal to the youth. In selection, people of a specific gender can fail to be
promoted to higher positions despite being qualified because people of the opposite gender have
traditionally led the organization.
Zulu's Newcastle directly applied discrimination when they refused to hire Bernard Reader, an
older applicant citing that more senior employees are slower. The company already had an older
employee who is aged 54, and as a result, they reasoned that having two older employees would
make management harder and the productivity lower. According to the Equity Act 2010, Bernard
deserved to be employed by the company because he qualified. He will be required to show that
he was qualified but discriminated against because of his age. Zulu will be compelled to hire him
and might also be fined because of discrimination against a candidate on an age basis.
In the case of Bernard Reader, age discrimination is evident, which prohibited conduct under the
Equality Act 2010 is. However, the situation can be managed lawfully in adherence to the Act.
Managing the performance of Bernard Reader should focus on professionalism and
qualifications instead of protected characteristics, potential sources of discrimination. Most
importantly, the recruitment process should be managed about equality law and protect the
candidate from age discrimination. In employment, Bernard Reader has a right to performance
appraisal through fair performance management procedures in adherence to the Equality Act
2010.
2.2 How contracts of employment are established
Employees who have been working at Zulu's for more than two years have been working without
updated contacts. Those who were employed during the last two years did not have employment
contracts at all. This was because the company did not have an HR manager for the previous two
years, and as a result, there was no way of updating the already existing contracts or drafting new
agreements for the new employees
The Employment Rights Act 1996, section 1, explains the requirement and the legal right of
employees to be issued with written contracts on the first day of employment. Therefore, the
organization has adopted these stipulations in establishing written agreements for employees.
The below elements must be there for the employment contract to be legally binding;
Offer
The employer must offer a job in certain conditions to the employee. This includes letting the
employee know about the nature of the job and what will be needed.
Acceptance
The employee must accept the offer made by the employer before the stipulated time. The
employee is given time to consider whether to accept the offer or not.
Intention to create legal relations
Both parties should demonstrate that they are ready to enter into a legal agreement. This is to
confirm that neither party was forced into joining the contract.
Consideration
Consideration should come from both parties, with the employer showing the will to pay the
employee and the employee the choice to work for the employer. This section is crucial because
it dictates the salary of the employee.
Certainty as to terms
The parties need to make all the details clear, including how the job should be handled. There
should be an explicit agreement on what will happen in different circumstances.
Examples of terms that should be in an employment contract
Employees should know the exact periods they will be working for the organization. There
should also be terms on the remuneration and how it can be increased or reduced (Purcell, 2013.
Employees would like to know the precise amounts they shall be earning working in a particular
organization. There should be terms on how the contract can be contracted. This is especially
helpful if the employer decides to terminate the agreement without the employee's consent.
Customs and practices which applies to those employees without contracts and then explain
The employees without contacts are assumed to be legally employed as long as they provide
their employers' services. All that is needed is the employee to show that they have been working
in a specific organization.
Another custom and practice are the terms of employment remaining the same unless there is an
agreement between the employer and the employee. The employer does not have the right to
change these terms just because there is no written agreement between the parties.
How the contacts are issued to employees who did not have contracts
The first step of issuing such employees who have had no contracts is negotiating to agree on
terms. The requirements require that the employees be given with contracts which do not make
their working conditions worse. The employees can accept reduced terms independently, but
they cannot force them to accept such terms. The employees also need to be given time to
consult before taking the terms. After the employee has agreed on the words, the employer
should go ahead and draft the contract. The parties' last step should follow this involved signing
the contract to show that it is legally binding.

3.1 How contracts can be changed lawfully.

Sometimes it might be necessary to change certain aspects of the employment contracts. The
important thing is to make sure that the changes are recognized by the law and therefore are fully
legal. The RUPE provision allows an employer to provide ETO’s reasons to change the contract
legally. These reasons include;
Economical reason
This is when an organization is economically unable to honor the contracts it entered with its
employees. If the organization has not been doing well financially, it might not have enough
resources to pay high salaries to the employees. This will require a deduction in wages and it can
only be enforced through changing the contracts.
Technical reason
Technical issues can also result to a change in the original contracts and this is allowed by the
RUPE provision. The employer can cite issues such additional use of technology which has
resulted to some employees having fewer roles. All what is needed is to make sure that the
technical issues are genuine and admissible.
Organization
If the company decides to change its structure of management, some of the employees will be
affected where their roles might be reduced or increased. The changes need to be reflected
through changing the original contracts. Employers just need to inform the employees so that the
changes can be mutual.
A good example of changing the contracts legally is where Hell’s pays its employees as the
month ends unlike Zulu’s which pays its employees on the 15th. The changes mainly affect the
managers at the top who are transferred. There two ways that the changes can be done which
include discussing with the employs or making the changes without necessarily informing the
employees. In case the changes are made without informing the employees, there should be
incentives such as breach loans to let the employees withstand the changes. Sometimes the
employees might resist the changes and this requires the legal procedure of terminating old
contacts to be followed so the employees can be issued with new contracts based on new
statutes.

How to pay date can be changed lawfully for the transferred employees.
The easiest way of doing this is for both the employees and the employers to agree on pay dates
changes. To make this easier, the employer should allow the employee to experience financial
difficulties to make small advances. This mainly happens when pay dates are changed from
weekly to monthly. In case this does not work, the employer can follow the legal process to
terminate the contracts and then issue new ones with the new pay dates.
How contracts can be lawfully changed without an employee’s agreement
The change can also be made without the employees' consent. The management will make the
changes, and the employees are supposed to abide by them. There should be incentives such as
breach loans to let the employees withstand the changes in such a situation. The lawful way of
doing these changes is by ensuring that the new terms are better than the previous ones. The
employer will make the changes in a way that the employees will feel more appreciated. The
employer can also follow the due process to terminate the contracts and then issue the employees
with new re-employment contracts. All the employees will have to do is show that the new
employment terms are almost the same as those in the new contracts.

3.1 How contracts can be changed lawfully

Sometimes it might be necessary to change certain aspects of the employment contracts. The
important thing is to make sure that the changes are recognized by the law and therefore are fully
legal. The RUPE provision allows an employer to provide ETO’s reasons to change the contract
legally. These reasons include;
Economical reason
This is when an organization is economically unable to honour the contracts it entered with its
employees. If the organization has not been doing well financially, it might not have enough
resources to pay high salaries to the employees. This will require a deduction in wages and it can
only be enforced by changing the contracts.
Technical reason
Technical issues can also result in a change in the original contracts and this is allowed by the
RUPE provision. The employer can cite issues such as additional use of technology which has
resulted in some employees having fewer roles. All that is needed is to make sure that the
technical issues are genuine and admissible.
Organization
If the company decides to change its structure of management, some of the employees will be
affected and their roles might be reduced or increased. The changes need to be reflected by
changing the original contracts. Employers just need to inform the employees so that the changes
can be mutual. A good example of changing the contracts legally is where Hell’s pays its
employees as the month ends unlike Zulu’s which pays its employees on the 15th. The changes
mainly affect the managers at the top who are transferred. There are two ways that the changes
can be done which include discussing with the employees or making the changes without
necessarily informing the employees. In case the changes are made without informing the
employees, there should be incentives such as breach loans to let the employees withstand the
changes. Sometimes the employees might resist the changes and this requires the legal procedure
of terminating old contacts to be followed so the employees can be issued with new contracts
based on new statutes.
How to pay date can be changed lawfully for the transferred employees.
The easiest way of doing this is for both the employees and the employers to agree on pay date
changes. To make this easier, the employer should allow the employee to experience financial
difficulties to make small advances. This mainly happens when pay dates are changed from
weekly to monthly. In case this does not work, the employer can follow the legal process to
terminate the contracts and then issue new ones with the new pay dates.
How contracts can be lawfully changed without an employee’s agreement
The change can also be made without the employees' consent. The management will make the
changes, and the employees are supposed to abide by them. There should be incentives such as
breach loans to let the employees withstand the changes in such a situation. The lawful way of
doing these changes is by ensuring that the new terms are better than the previous ones. The
employer will make the changes in a way that the employees will feel more appreciated. The
employer can also follow the due process to terminate the contracts and then issue the employees
with new re-employment contracts. All the employees will have to do is show that the new
employment terms are almost the same as those in the new contracts.

3.2 The main requirements of redundancy law

The redundancy law requires that employees must be given sufficient notice whenever there are
significant changes happening in the organization (Clark, 2019). These include in case the
organization is planning to shutdown, relocate or lay off some employees. The notice is meant to
prepare the employees with enough time to understand the changes or look for employment
somewhere else. This law keeps on changing from time to time depending on the organization
and the working environment. Despite the regular changes, there are some fundamental
requirements that are required for the law to be effective.
  An employee who has been working for an organization for more than twelve years needs
to be given a twelve week notice before the planned changes.
 An employee who has been working for an organization for more than two months
require to be giving a minimum of two weeks’ notice.
 The employee employed for more than two years needs to be given notices which are
equivalent to the number of years they have been working for the company. This means
that an employee who has been in the company for five years needs a five week notice
and the one who has been in the organization for seven years needs a seven weeks’
notice.
For fair redundancy at the Zuzu’s it is important to tell all the employees. This will make them
understand the changes and be ready. The redundancy law should also deal with survival aspect
for the employees who see their colleagues leaving. Any employee who sees a close colleague
being fired will for sure experience some psychological impact which should be considered by
this law.
A redundancy plan for Hell’s Kitchen for the duplicated head office roles
 References

Employment Rights Acts 1996

Equality Act 2010
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https://centralenglandquakers.org.uk/wp-content/uploads/2017/05/ACAS-Guide-to-Handling-
small-scale-redundancies.pdf
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Practice, Routledge, London, 236.
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