• Schemes established by employer and form part of the remuneration and benefits package
• considering occupational pensions in context of the employment relationship is important to fully understand th legal framework within which OPS operates.
• Right to be a member will form part of employment contract
• Employee's loss of pension rights will be taken into account in determining amount of compensation that should be paid following unfair/wrongful dismissal

• Contract of employment exists when an employer and employee agree upon the T&C's of employment
• Shown by employee commencing work on terms offered
• Both are bound by agreed terms
• Contract need not be in writing, but commonly are
• Important to distinguish between employee and self employed person
• Employee:  'contract of service'
• Self employed:  'contract for services'
• Important to distinguish as a number of statutory rights and protections only apply to 'employee'
• An employer may also be liable for acts of employees in the course of their employment

• Nature of relationship, how much control the 'employer' has over the individual
• Method of selection
• Method of payment and who is responsible for paying NI and tax
• Entitlement to sickness and holiday pay
• Who has the power to determine hours worked
• Whether tasks performed are integral to the business or merely ancillary
• Economic factors - who bears risk of profit and loss
• Supervision and allocation of work
• provision of tools and equipment
• Expectations in respect of continuity of work

• Writing, oral or arise out of the conduct of parties
• Implied terms may be incorporated and terms may arise as a result of custom and practise
• When considering the scope of the contract, a court will look at the intention of the parties and what terms the parties might reasonanbly have included had they considered the matter.

1. Job title and reporting obligations
2. Details of specific duties of the employee
3. Place of work - 'mobility clause'
4. Details of employee's salary - bonuses, commision, OT
5. Holiday and sick pay (medical or PHI cover)
6. Pension entitlements
7. Notice period
8. Ability of employer to terminate and make payment in lieu of notice
9. Details of circumstances where employer may terminate without notice, e.g. gross misconduct
10. Restrictive Covenants

• Provisions which prevent an employee from soliciting customers or staff or competing with the empolyer after their employment ceases
• Great care needed to ensure they're enforceable
• Restrictions must go no futher than is necessary to protect employer's business
• Court will look at length of time, geographical spread, knowledge of the employee and general reasonableness of the provisions
• If provisions too wide - unenforceable

• Many statutory rights are determined by reference to this
• Means working for the smae employer without break
• Calculated by reference to number of months and years between when employment commences and employment ends

Statutory Requirements

Written Statement of Employment Particulars

• Employed not less than one month should receive one
• Not a contract but may be used to establish what has been agreed
• Must be given no later than 2 months
• Principle statement should include:
  • Names of employer/employee
  • Date of commencement
  • Scale, rate of remuneration, method of calculation
  • Frequency of payments
  • hours of work and any special conditions applying
  • Holiday entitlements, incl Statutory holidays and holidy pay
  • Length of notice
  • Title of the job and brief description
  • Place of work or where employee is required or permitted to work

• T&C's relating to absence
• Pension arrangement - whether there's a contracting out certificate
• Collective agreements that directly affect the terms of employment
• Duration of temporary jobs
• Fixed term - date when it ends
• Certain info where empoyee is requried to work outside the UK
• Any disciplinary/dismissal procedures
• name of person to whom the employee can apply if dissatisfied with disciplinary decisions
• Manner in which such appeal or grievance should be made and any further steps that should be taken

• Can refer the matter to an employment tribunal
• Employers may alse refer a dispute about the accuracy
• If employment has terminated, the reference must be made no later than three months after the date ended.

• Provisions relating to:
  • the hours that people can be required to work
  • rest periods whilst at work and min holiday entitlements
• Apply to all workers
• Workers have right to complain to tribunal if not held up

• 4.8 weeks paid leave each year (rising to 5.6 weeks from 1/4/09)
• Statutory leave not given in addition
• Bank holidays - 8 public holidays

• Employment Rights Act 96 provide for time off for:
  • paid time off
    • official trade union duties and connected training
    • Safety representative
    • Trustee of OPS
  • Unpaid:
    • public duties: Justice of Peace
  • Reasonable paid time off to seek alternative work or training when under notice of redundancy
  • Pregnant employees for antenatal care
  • time off for yound workers to undertake training.

• 1999: mat leave rights extended and made available to more women
• New rights to take unpaid parental leave and time off for dependants in cases of emergency
• Only applies to 'employees'
• Government considering extending this to workers

• 26 weeks ordinary leave
• 26 weeks additional leave (so long as 26 weeks service has been completed)
• 39 Weeks statutory maternity pay
• Ordinary and paid additional maternity leave count as pensionable service
• Employee contributions will be based on employee's actual pay
• No benefits have to be provided for periods of upaid additional maternity leave.

• Those employed for a min of 26 weeks are entitled to take 1 or 2 weeks leave.
• Also available in relation to an adopted child
• Benefits and employer contributions to pension scheme continue as normal.
• Employee contributions based on employee's actual pay.

• Employee must has worked for employer for 26 weeks and is entitled to the same leave as for maternity leave.

• Employee employed for one year
• Leave must be taken before child's 5th birthday (18 if disabled child)
• For adopted children - taken in the 5 year's after adoption.
• 13 weeks in total (18 for disabled child), no more than 4 weeks per year unless otherwise agreed with employer.
• Usually unpaid and thus no pension benefits accrued.
• If paid, pension benefits accrue based on employee's actual pay.

• Dependant is defined as:
  • spouse/partner
  • child
  • parent
  • person who lives in same household as the employee, other than as an employee, tenant, lodger or boarder, who relies solely on the employee for help in an emergency
• Right exists independently of any contractual right to time off for emergencies
• Amount - reasonable to the circumstancies

• From 1/10/04 all employers are required to provide details of disciplinary procedures and rules. 
• Minimum three stage process:
  • problem set out in writing with full details provided to other party
  • both parties meeting to discuss the problem
  • appeal to be arranged if requested
• Dismissal without complying with the procedure will automatically be treated as unfair with min compensation of 4 week pays

• must not act in a manner which is likely to destroy the relationship of trust and confidence
• Imperial Group Pension Trust V. Imperial Tobacco Ltd (1991) included this duty in the requirement to exercise the employer's powers in respect of its pension scheme
• Employer has duty to provide:
  • safe workplace
  • competent and safe fellow employees
  • safe system of work
  • wages as per contract after deduction of tax and NI

• Ready and willing to work and warrants that he is competent
• Implied obligation to obey instructions
• Owes duty of loyalty which includes:
  • protecting the employer's confidential information
  • not to compete with employer while he remains in employment
  • duty to declare and account for any profits made in his employer's business

• Amount of notice given will be that specified in contract.
• Minimum notice period:
  • one week - employment 1m - 2y
  • one week for each year of continuous employment - 2y to 12y
  • 12 weeks - >12y
• Gross misconduct = no notice
• Either party may waive its right to notice
• Alternatively, employee might accept payment in lieu of notice
• Income tax treatment of payments in lieu varies according to circumstances

• Where dismissal takes place in circumstances that amount to a breach of contract or without proper notice
• Remedy will be payment of damages for financial loss suffered
• Action does not preclude a claim and action for unfair dismissal
• It may be the only remedy where unfair dismissal is not claimed or where the employee has insufficient service to pursue a claim for unfair

Unfair Dismissal

Time Limits (3)

Fair Reasons

Fair Procedure

• Time limits
  • One year's continuous service
  • Must be made within 3 months of termination of employment
  • Resignation may count as dismissa
• Employer must demonstrate dismissal was fair.  Fair reasons are dismissals based on:
  • The capacity of the employee to perform the work he is required to do
  • conduct, including absence
  • redundancy
  • illegality - lose driving license
  • 'some other substantial reason'
  • Retirement
• Fair Procedure
  • If reason is fair, dismissal may still be unfair if fair procedure not followed
  • Code of Practice gives guidance

• Where reason is automatic, the need for an employee to have completed 1 year employment does not apply in some circumstances.
• Include:
  • related to 'business sale'
  • where statutory dismissal and disciplinary procedure hasn't been followed
  • pregnancy, childbirth, adoption, parental leave, time off for dependents
  • health and safety related
  • dismissal for asserting statutory rights
  • certain trade union activities
  • whistle blowers

• Reinstatement
  • employee returned to their previous job on same T&C's
• Re-engagement
  • returns to a comparable job.
• Compensation
  • Basic award:  set formula subject to stat cap (currently £9,900)
  • Compensatory award:  Loss of earnings,
    • max £63,000
    • Does not apply in some cases
  • Additonal award: where employer fails to comply with re-instatement, re-engagement order

• An employee who is forced to resign as a result of the conduct of his employer
• E.g. resignation in protest at employer's refusal to pay minimum wage
• 4 elements:
  • breach of contract which is actual breach or an anticipatory breach
  • Must be sufficiently important to justify employee resigning or last in a series of incidents which justifies leaving
  • Emplyee must leave in response to the breach and not for some other unconnected reason
  • The employee must not take too long about it

• 2 different meanings:  one to establish entitlement to redundancy payments and one for right to be consulted
• Redundancy payments:
  • employer has/intends to cease, to carry on the business for the purpose for which the employee was employed
  • employer has/intends to cease, to carry on the business in the place where the employee was employed
  • Requirements of the business for employees to carry out work of a particular kind has ceased or diminished or expected to
  • Requirements of the business for employees to carry out work of a particular kind in the place where they were so employed, has cesaed or diminished or expected to
• For right to be collectively consulted
  • applies where 20 or more employees being made redundant over 90 days or less
  • meaning:  dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related
  • e.g. reorganisation
• Even if collective consultation rights are not triggered the employer may have to follow statutory dismissal procedure
• Duty to consult
  • To trade unions or elected employee representatives
  • Various statutory requirements to be complied with
• Payments
  • 1.5 weeks pay for each complete year of service to 41
  • 1 weeks pay: 22 to 40
  • 0.5 weeks pay:  under 22
  • Max length of service = 20
  • Week's pay capped to £330
  • Max statutory award = £9,900
• Contractual red pay may also be due

• Direct/indirect/harassment or victimisation
• Direct:  one person treated less favourably than another who is in a comparable situation. e.g. unequal pay
• Indirect: apparently neutral provision puts a group of people at a disadvantage. 
  • e.g. benefit which would become payable after 5 years unbroken service would discriminate women who take career breaks.
• Indirect (and direct where related to age) can be permitted if it can be objectively justified
• Harassment:  unwanted conduct related to a persons age, sex, race, etc with the purpose or effect of violating the dignity of a person, or creating an intimidating, hostile, degrading, humiliating or offensive environment
• Victimisation:  less favourable treatment because the employee has taken action to enforce their right to non-discrimination

• Unlawfal for employer to discriminate in following circumstances:
  • in relation to job applications and selection processes
  • terms of employment
  • access to opportunities for promotion, transfer, training, benefits or services
  • dismissal
  • operation of pension scheme

Access

• Bilke-Kaufhaus v. Weber von Harz
  • Held that principle that men and women should receive equal pay for equal work applies to access to pension benefits
  • Indirect discrimination to exclude part-timers
• Had to grant backdated membership dating back to 8/4/76
• Must bring claim within 6 months of end of employment unless made to Ombudsman (3y)

Benefits

• Barber V. Guardian Royal Exchange Assurance Company (1990)
  • Benefits under pension scheme constitute 'pay' except AVC's
  • Benefits had to be equalised at 17 May 1990 unless legal proceedings had been instituted before that date
• After this date and before rules amended, benefits had to be increased to those of the advantaged sex.
• Large number of schemes attempted to make amendments but failed to amend correctly.

Exemptions

• Sex based actuarial factors

• PTW(PoLFT)Regs 2000:  requires employers to treat part time workers no less favourably than full time workers unless objectively justified
  • Not necessary for a part-time worker to show indirect sexual discrimination in order to claim entitlement to the same benefits as a full time worker
• FTE(PoLFT)Regs 2002:  provides similar protection as part time workers

• EE(Age)Regs 2006 prohibit discrimination, harassment or victimisation by employers on grounds of age
• Imply a non-discrimination rule into the rules of OPS
• Exemptions:
  • min and max ages for admission
  • min level of pensionable pay for adminission
  • use of age related criteria in actuarial calculations
  • min age for entitlement to benefits
  • specified ages for drawing benefits early without reduction or late with enhancement
  • ill health pension based on prospective service
  • age related contirbutions where the aim is to equalise beenfits or make them more equal
• Exemptions do not cover everything - T's must misapply provisions where appropriate
• Objective justification will be a defence to both direct and indirect discrimination

• Disability Discrimination Act 1995
• Disability means: physical or mental impairment that has a substantial and long term adverse effect on a person's ability to carry out normal day-to-day activities
• Prior to 1/10/04 schemes were allowed to treat them less favourably on the grounds of cost
• Will now only be justified if the reason is 'material' and 'substantial'