5EML – Employment Law –
Assessment guidance
This section offers guidance on each area of the assessment brief.
Legal System
Assessment criterion: 1.1 Explain the aims and objectives of employment regulation.
Guidance
To meet this criterion you must explain three objectives of employment legislation. It is advisable to detail these using three separate headings and paragraphs. It is advised that you pick three from the following to explain: fairness, justice, protection of employees, compliance with international legal obligations (EU), delivery of government policy, social and economic objectives.
Assessment criterion: 1.2 Describe the role played by the tribunal and courts system in enforcing employment law.
Guidance
To meet this criterion you must describe how the courts enforce the law by applying the law when resolving cases. This could be in the form of a flowchart of the hierarchy of the courts (3 tiers) and how a case goes from a tribunal through the courts, up to the Supreme Court or the ECJ, with a brief explanation of what happens at each stage.
Assessment criterion: 1.3 Explain how cases are settled before and during formal legal procedures.
Guidance
To meet this criterion you must provide an explanation of recognised alternative means of resolving disputes. This could include, for example, conciliation, arbitration and mediation.
In order to assist with this assessment criterion you could visit the ACAS website which provides some useful information on this area: http://www.acas.org.uk/index.aspx?articleid=1461
Avoiding Discrimination
Assessment criterion: 2.1 Identify the main principles of discrimination law in recruitment and selection and in employment.
Guidance
To meet this criterion learners must identify the principles of discrimination law that relate to recruitment, selection and employment: One example must be provided for each of these three stages.
Within your identification you must make reference to the Equality Act 2010 and provide a brief explanation of at least 2 types of discrimination. It is advisable you highlight your response to this criterion with reference to relevant case law.
Contract law
Assessment criterion: 2.2 Explain how contracts of employment are established.
Guidance
To meet this criterion you must explain all four elements of a contract; offer, acceptance, consideration and intention to create legal relations.
You must also include an explanation of the difference between express and implied terms. This should include an outline of express terms a contract must have, for example; salary, the business name, the employee’s name, job title, continuous employment, starting date, hours of work, holiday, notice periods, collective agreement, pensions, etc
Assessment criterion: 3.1 Describe when and how contracts can be changed lawfully.
Guidance
To meet this criterion you must provide a description of contractual issues in the management of change; you must include identification of a flexibility clause as key feature of a lawful contract change, a brief description of the process and identification of what alternatives an organisation has to change contracts.
Organisational change
Assessment criterion: 3.2 Explain the main requirements of redundancy law.
Guidance
To meet this criterion you must explain the law relating to redundancy, making reference to The Employment Rights Act 1996 and The Trade Union and Labour Relations Consolidation Act 1992. You must also provide an outline of the steps an organisation must follow for redundancy to be lawful and the consequences of not following the correct procedure.
You could look at the ACAS website for further help and guidance on this area: http://www.acas.org.uk/index.aspx?articleid=1461
Assessment criterion: 3.3 Explain the main requirements of the law on business transfers.
Guidance
To meet this criterion you must provide an explanation of the law relating to TUPE (Transfer of Undertakings Protection of Employment 1996). You must include an outline and brief explanation of the process for a successful TUPE transfer. In your explanation you could acknowledge the complexity in this area and the need for an HR professional to seek further legal advice.
Workers’ rights
Assessment criterion: 4.1 Identify the major statutory rights workers have in the fields of pay, leave and working time.
Guidance
To meet this criterion you must identify and provide a brief explanation of pay, leave and working time rights with one example of each and illustrated with one relevant source of law (statute or case law) for example;
Working time: rest periods, working week, night work (Working Time Regulations 1998, Health and Safety Act 1974)
Pay: equal pay, NMW, itemised pay statements (Equality Act 2010, Employment Rights Act 1996, National Minimum Wage Act 1998)
Leave: annual leave, statutory paternity leave (Working Time Regulations 1998, Employment Act 2002)
Assessment criterion: 4.2 Explain the major requirements of equal pay law.
Assessment criterion: 4.3 Explain major maternity, paternity and other family-friendly employment rights.
Guidance
To meet both of the above criterion you must explain the major requirements of equal pay law and gender pay reporting. Within your response you must make reference to The Equality Act 2010.
You must explain the major requirements of maternity, paternity and other family friendly employment rights, including one example from each category.
Assessment criterion: 5.1 Identify the major requirements of health and safety law.
Guidance
To meet this criterion, you must identify the principles of health and safety law which could include employer and employee obligations. You must make reference to the Health and Safety at Work Act 1974.
Assessment criterion: 5.2 Explain the significance of implied duties as regards the management of employees at work.
Guidance
To meet this criterion you must provide an explanation of the duty of trust and confidence (implied term) and identification of the consequences of breach for the employer. Within your explanation you need to include options for an employer, i.e. address the allegations straight away and for the employee, i.e. resign and claim constructive dismissal provided qualifying period is satisfied.
You must include an explanation of what constructive dismissal is.
Assessment criterion: 5.3 Explain the principles of the law on freedom of association.
Guidance
To meet this criterion you must explain that Freedom of Association is recognised under article 11 of the Human Rights Act 1998 and also must include a summary of Article 11 (the rights of the employee under to trade union membership).
Dismissal
Assessment criterion: 6.1 Explain the main requirements of unfair dismissal law in respect of capability and misconduct issues.
Assessment criterion: 6.2 Explain the scope of the right for employees to be accompanied at serious discipline and grievance hearings.
Guidance
To meet these criteria, you must explain the process to be followed when addressing misconduct issues starting with suspension and going through to hearings, evidence and appeals. You must briefly explain the process to be followed when addressing capability issues.
You must provide an explanation of fair reasons for dismissal citing relevant legislation (Employment Rights Act 1996). You could make reference to the ACAS Code of Practice in your response.
You must also explain the right to be accompanied, including who can accompany the employee and the role they are allowed to play at disciplinary and grievance hearings.
Evidence to be produced/required
You are required to produce:
A word document responding to the above questions containing 4500 words (+/- 10%)
You should relate academic concepts, theories and professional practice to the way organisations operate, in a critical and informed way, and with reference to key texts, articles and other publications and by using organisational examples for illustration.
When referring to the laws indicate the relevant legislation and cite any case law on key legal issues.
All reference sources should be acknowledged correctly and a bibliography provided where appropriate (these should be excluded from the word count).
