In this series, we delve into the XpertHR reference manual to find essential information relating to one of our features. This month’s topic is employment rights for…
Rights under the employment rights act 1996
Under the Employment Rights Act 1996, Part V, trade union-appointed or employee-elected representatives, and employees who have put their name forward for election as employee representatives, are among those who have the legal right not to be subjected to any detriment by their employer for exercising (or presuming to exercise) certain statutory rights. Those rights are to perform, or propose to perform, their functions as such representatives and to consult with their employer on issues related to proposed collective redundancies or the transfer of an undertaking.
Rights under other legislation
Trade Union and Labour Relations (Consolidation) Act 1992
Employees have the right not to be subjected to any detriment as individuals by any act, or any deliberate failure to act, by their employer if the act or failure takes place for the purpose of:
- Preventing or deterring them from being or seeking to become members of an independent trade union, or penalising them for doing so
- Preventing or deterring them from taking part in the activities of an independent trade union at an appropriate time, or penalising them for doing so
- Compelling them to be or become members of any trade union or of a particular trade union or of one of a number of particular trade unions.
The expression ‘an appropriate time’, in relation to trade union activities, means a time outside an employee’s working hours or a time within that employee’s working hours at which, in accordance with arrangements agreed with, or consent given by, the employer, it is permissible for the employee to take part in such activities.
In addition, an employee who is not a member of any trade union or of a particular trade union may not be subjected to any detriment by his or her employer for refusing to make a payment (or any payment) to a charity or other body (whether by a deduction from the employee’s wages or otherwise) as an alternative to the payment of trade union dues.
Employees who have been subjected to a detriment in these circumstances may complain to an employment tribunal and will be awarded appropriate compensation (including compensation for any loss attributable to, or any expenses incurred in consequence of, their employer’s act or failure to act), as well as compensation for the loss of any benefit that they might reasonably be expected to have had but for that act or failure to act.
Transnational Information and Consultation of Employees Regulations 1999
Under the Transnational Information and Consultation of Employees Regulations 1999, members of special negotiating bodies (SNBs), members of European Works Councils (EWCs), information and consultation representatives, and candidates for election, as such members or representatives, have the right not to be subjected to any detriment for performing (or proposing to perform) any functions or activities as such members, representatives or candidates, or for requesting a reasonable amount of paid time off work to enable them to carry out those functions or activities.
Members of SNBs and EWCs who have been subjected to a detriment for performing or proposing to perform their legitimate functions or activities may complain to an employment tribunal and will be awarded appropriate compensation (including compensation for any loss attributable to, or any expenses incurred in consequence of, their employer’s act or failure to act), as well as compensation for the loss of any benefit that they might reasonably be expected to have had but for that act or failure to act (Transnational Information and Consultation of Employees Regulations 1999, regulation 32).
Action point checklist
- Train managers and supervisors sufficiently to ensure they are familiar with their obligations under the law and that no employee or worker under their control is disciplined, punished or otherwise subjected to a detriment for exercising or asserting his or her statutory employment rights.
- Ensure that staff and works handbooks remind employees and workers of their statutory employment rights and encourage them to make use of the grievance procedure if they have any problems or concerns about any perceived abuse of those rights and their treatment at the hands of managers and supervisors.
Questions and answers
What constitutes a detriment?
An employee or other worker will be treated as having been subjected to a detriment if he or she is demoted, transferred to less suitable or more demanding work, refused a promised pay rise or further opportunities for overtime, not sent on an expected training course, denied an opportunity for promotion, harassed or criticised.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
What can employees do if they are being victimised?
An employee or other worker may complain of detriment or victimisation to an employment tribunal (without having to resign in order to do so), regardless of his or her age or length of service at the material time. Employees who are dismissed or selected for redundancy for challenging their employer’s breach of their rights, or for bringing proceedings, may also bring a complaint to an employment tribunal. An employee who succeeds in such a claim will be awarded compensation according to what the tribunal judges to be just and equitable.
