Employment law affects almost everybody at some point, writes Jason Saunders, whether they are employees, employers, directors, contractors, agency workers, freelancers etc. A high percentage of the population spend the majority of our waking days at work, thinking about work and travelling to and from work.
Security managers have to be diverse within their role, for as well as overseeing a department that reduces theft, fraud and protects an organisations assets whilst enforcing its policy and procedures, in the majority of cases he or she will have to apply their “human resources hat” and understand the welfare and rights of their respective co-workers and or their direct line reports, to maintain a professional working relationship while working within the codes of practice.
It is crucial that the security manager has a general understanding of employment law, especially the parts that relate to their role, whilst dealing with situations or issues that arise with other employees, or incidents such as protests or demonstrations that may have an adverse effect on or within the organisation that they are employed by. The manager has also to understand the consequences of not adopting the correct procedures and acting appropriately in any event.
Forging a comprehensive internal business partnership relationship with the human resources manager or employee relations manager is critical, so as to understand and ask specific questions to an expert in employment law relating to an issue, or receive direction on next step, and in turn give credible advice and guidance .
For any organisation, employment Law is vast and below is a range of common cases that are usually undertaken in industrial tribunals.
These are: Termination of employment, Unfair dismissal, Disciplinary and grievance procedures, Discrimination (Race, Sex, Sexual orientation, Disability, Religious, Fixed term workers and part time workers, Age) Working time, Deductions of wages, Breach of contract, Maternity leave and pay, Paternity leave and pay, changes to terms and conditions, Bullying in the workplace, Stress, Sickness absence, Misconduct, Redundancy, Freelance workers, Compromise agreements, Drafting policies, procedures and contracts.
The security manager will only deal with some of these issues within his role, but the issues they deal with will be on a regular basis:
Termination of employment, Investigations leading to disciplinary or in some cases chairing a disciplinary and awarding a decision.
If they have direct reports then this list expands, because as the line manager the dynamics change and the responsibility of the welfare of their direct reports is paramount, while ensuring that there is no discrimination within their team. The need for careful handling with an ethical and pragmatic approach, so as not to violate an employee’s rights or have a grievance raised against the manager, must be at the forefront. Adopting this practice it would prove almost impossible for an individual to bring and successfully win an industrial tribunal claim against an employer.
There are two kinds of law, criminal and civil law.
Criminal law – is a system for punishing wrong doing. The criminal law sets out all the things which are considered unacceptable, and which will render someone liable for prosecution, and there are some substantial differences between the two.
In the criminal system a prosecution will be brought against a defendant. Defendants are normally living people but it is possible for a prosecution to be brought against a limited company now, prosecutions are generally brought by the Crown Prosecution Service on behalf of us all (although technically they are brought in the name of the Queen).
They can also be brought by private organisations though – quite a lot of private prosecutions are brought by shops against shoplifters, criminal cases are generally brought in the Magistrates Courts or, for more serious offences, the Crown Court.
In the criminal courts, it is the prosecution who will have the burden of proof, and the standard is much higher, they have to prove their case ‘beyond reasonable doubt’. This is why a victim of crime may be able to win a civil claim against someone for damages who has been acquitted in the criminal courts, resulting in conviction or judgement.
In the criminal courts, a defendant will either be convicted or acquitted; if convicted they will generally receive a sentence, this is mostly a fine, but can be a custodial sentence in prison, or perhaps a community service order.
Civil law – is a complicated system which tries to set out rules to cover all the sorts of situation that may arise in life, and provides for disputes to be decided by a Judge if the parties are unable to sort it out themselves.
In the civil system a claimant will bring a claim against a defendant, the parties can be anyone who has the right to bring a case at law (basically anyone who is not mad, under 18 or a ‘vexation litigant’).
Civil cases are generally brought in the County Court with more complex cases and those involving more money being brought in the High Court.
In the civil courts, it is generally the claimant who has to prove their case, and the standard of proof is the ‘balance of probabilities’, So it will have to be more likely that they are right than not. Sometimes the burden of proof is reversed and it will be the defendant who will have to prove something, but not often. Unless they are bringing a ‘counter claim’.
Both types of case can be appealed, to the Court of Appeal and ultimately the Supreme Court, the precise route can vary depending on the type of case, some specialist types of cases can also be brought in one or other of the various tribunals, such as the Employment Tribunal, the Lands Tribunal etc. These are mostly for civil claims.
An Employment Tribunal is like a court but it is not as formal, for example nobody wears a wig or gown. However, like a court it must act independently and cannot give legal advice. Almost all hearings are open to the public.
The Employment Tribunals are independent judicial bodies who determine disputes between employers and employees over employment rights, the committee hear cases and make decisions on matters to do with employment such as unfair dismissal, redundancy payments, discrimination and a range of claims relating to wages and other payments. Although an Employment Tribunal is not as formal as a court it must comply with rules of procedure and act independently.
Should an appeal by either party be instigated this will be heard by the Employment Appeals Tribunal (EAT) an appeal must be on a point of law, i.e. it must identify flaws in the legal reasoning of the original decision, the Employment Appeal Tribunal will not normally re–examine issues of fact (HM Courts & Tribunals Service).
Summary
All employees have rights whilst employed but they also have a responsibility to conduct themselves in a manner which will not harm themselves or others whilst at work, equally they should go about their daily duties with integrity and respect for their fellow colleagues.
Of course we live in a realistic world and from time to time strikes, protests, demonstrations, disputes, arguments, or even inappropriate comments or sexual advances take place within work making it impossible for the organisation or indeed the victim to feel comfortable or indeed operate effectively. Empathy should be demonstrated at every opportunity when confronted by employees with disputes in whatever situation arises.
When dealing with an individual or groups that form part of an investigation, again it is important not to show emotion during the meeting but to gather and record the facts and follow all guidelines outlined within the organisations employment handbook or policy and procedure document. The security manager arguably has the hardest role in any organisation as they are usually already perceived as an oppressor or someone who is out to catch employees.
If carried out effectively and professionally with a witness taking notes at a meeting it would be harder from an individual to push for unfair dismissal if the security manager can prove due diligence at every step of the process, and that the meeting was conducted working within the parameters of the organisations policy and procedures and under the legislation of the employment law act.
Understanding the differences between employment law and criminal law is paramount so that an effective solution or plan can be put in place to resolve any disputes or grievances raised in the first instance. The main understanding for the security manager is to follow the legislation as set out under employment law to protect the employee and then in turn understand and follow company policy and procedures when dealing with trade or industrial disputes, and to remain professional and impartial at all times, so that it will prove almost impossible for a case to be brought before an industrial tribunal against the manager or the organisation.
A statute is an Act of Parliament. After legislation has been proposed it begins life as a bill, passes various readings in both the House of Commons and the House of Lords before receiving Royal Assent and becoming law.
Employment law in the UK is mainly statute based. The scope and range of legislation activity in all areas of employment law has been significant, influenced in particular by the UK’s membership of the European Union and the development of the anti-discrimination legislation. Geldards LLP. (2007). Employment Legislation. Employment Law in the UK. 1 (1), 18.
About the writer
Jason Saunders is a regional loss prevention manager working in the clothing retail sector and has been for 22 years.
