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5OS01 Assignment Example

5OS01 Specialist Employment Law explores key areas of employment legislation and the legal framework, highlighting how people professionals must consider and apply legal requirements across different jurisdictions when carrying out the diverse aspects of their role.

Table of Contents

Assessment Questions

AC 1.1 A newly appointed commercial director has questioned whether the UK’s employment law framework is ‘fit for purpose’ in a competitive retail market. He argues that regulation increases costs and makes it harder to respond quickly to changes in consumer demand. He asks you to evaluate the aims and objectives of employment regulation for the organisation and its staff.

Employment regulation pursues several aims simultaneously, and the Commercial Director’s objection engages only one of them.

Protecting employees against unequal bargaining power. The foundational aim is that an individual negotiating with an employer of 4,000 people has limited leverage. Statutory minima in pay, hours and dismissal exist because the market alone would not produce them. For our store and warehouse staff, many part-time and on variable hours, these protections are the substance of their terms rather than a supplement to them.

Preventing discrimination and promoting fair access to work. The Equality Act 2010 aims to secure participation on merit. This is not solely a moral objective. A retailer recruiting from a restricted pool competes for talent on an unnecessarily narrow base.

Supporting economic efficiency and fair competition. Regulation prevents competitive advantage being gained by undercutting standards, so our business is not required to match a competitor who pays below minimum wage.

Providing certainty and reducing dispute cost. Statutory frameworks and the Acas Code supply predictable processes. A manager following them knows what a tribunal will expect.

Evaluating the Director’s argument. The cost is real. Compliance consumes management time, and dismissal protections mean workforce changes take longer than a purely commercial calculation would allow. In a sector operating on thin margins, this is not a trivial objection.

Against it, three points weigh heavily. First, the costs of non-compliance exceed the costs of compliance: the maximum compensatory award for unfair dismissal now stands at £123,543 for dismissals on or after 6 April 2026, before legal costs and management time (Fox Williams, 2026). Second, the agility the Director wants is available within the framework, since fixed-term arrangements, flexible clauses and properly conducted redundancy all remain lawful. What regulation removes is the ability to act without process, not the ability to act. Third, evidence associates fair treatment with retention and discretionary effort (CIPD, 2025a), and in a warehouse operation with high turnover the recruitment cost of poor practice is substantial.

Judgement. The framework is broadly fit for purpose for this organisation. It constrains speed rather than direction, and the constraint is proportionate to what it prevents. The genuine cost falls on organisations that manage employment relationships badly, and the honest response to the Director is that our exposure is a function of our practice rather than of the law.

Tribunals distinguished from the ordinary courts. Employment tribunals are specialist bodies with jurisdiction confined to statutory employment claims, including unfair dismissal, discrimination and unlawful deduction from wages. They differ from the civil courts in four practical respects. Jurisdiction is limited: a tribunal cannot hear a general contractual dispute except in narrow circumstances on termination. Procedure is less formal, and parties may represent themselves. Costs do not ordinarily follow the event, so a losing party is not usually liable for the other side’s legal costs, which materially changes the risk calculation for a claimant. And remedies are statutory, principally reinstatement, re-engagement or compensation, rather than damages at large.

Acas early conciliation. Before a claim can be presented, the prospective claimant must notify Acas, which offers conciliation (Acas, 2024a). This is a mandatory procedural step rather than a voluntary one, and a significant proportion of disputes settle at this stage without a hearing. For the store operations manager, this is the first practical point: the solicitor’s letter may be followed by an Acas notification rather than a claim, and that is an opportunity to resolve the matter at low cost.

The appellate structure. Appeals lie from the employment tribunal to the Employment Appeal Tribunal, and only on a point of law rather than on the facts. From the EAT, appeal lies to the Court of Appeal and then to the Supreme Court, in each case with permission.

Correcting the manager’s assumption. The assumption that this will run for years through the courts is mistaken for three reasons. Most claims never reach a hearing, being resolved at conciliation or settled. Where a claim proceeds, the tribunal determines both fact and law, and its findings of fact are effectively final. An appeal is available only on a point of law, and permission is required, so a dissatisfied employee cannot simply appeal an adverse outcome because they disagree with it.

Practical advice. The manager should engage constructively with Acas if contacted, ensure the dismissal file is complete, and check that the process followed the Acas Code, since unreasonable failure to comply permits a tribunal to adjust any award by up to 25 per cent (Acas, 2024a). The realistic exposure here is a single tribunal hearing within roughly a year, not years of litigation.

The statutory framework. The Equality Act 2010 protects nine characteristics, of which age is directly engaged here. Section 39 makes it unlawful to discriminate in the arrangements for deciding to whom to offer employment, which captures shortlisting.

Direct discrimination. Less favourable treatment because of a protected characteristic. The screening tool is unlikely to be directly discriminatory, since it does not apply an explicit age criterion. Age is unusual, however, in that direct discrimination can be justified if a proportionate means of achieving a legitimate aim.

Indirect discrimination. This is the principal risk. Under section 19, indirect discrimination occurs where a provision, criterion or practice is applied to everyone but puts people sharing a protected characteristic at a particular disadvantage, and cannot be objectively justified. The screening tool is a PCP applied to all candidates. If it filters out older applicants disproportionately, a particular disadvantage is established. In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 the Supreme Court confirmed that a neutral requirement operating to the disadvantage of an age group requires justification.

The employment gaps criterion. This carries a separate and possibly greater risk. Employment gaps correlate with maternity, caring responsibilities and disability. Screening them out may indirectly discriminate on grounds of sex or disability, and disability engages the additional duty to make reasonable adjustments under section 20.

Justification. The employer must show a legitimate aim and that the means are proportionate. Efficient shortlisting is a legitimate aim. Proportionality is harder: where a less discriminatory alternative exists, such as human review of filtered candidates, the tribunal will ask why it was not used. In Seldon v Clarkson Wright & Jakes [2012] UKSC 16 the Supreme Court held that aims must be legitimate in a public interest sense and the means genuinely proportionate.

Significance of the risk in practice. Discrimination claims require no qualifying service and carry no statutory cap on compensation, unlike unfair dismissal. Awards include injury to feelings. Because the tool applies to every applicant, the exposure is not one claim but potentially many, and there is reputational risk for a consumer-facing retailer.

Advice to the recruitment manager. The testing has already identified disparate impact, which means the organisation has knowledge, and proceeding regardless would be difficult to defend. Conduct an equality impact assessment, retain human review of rejected candidates, remove the employment gap criterion, and document the justification for anything retained (CIPD, 2024).

The statutory basis. The Equality Act 2010 implies a sex equality clause into every contract of employment (section 66). Where a woman is employed on equal work to a man and receives less favourable contractual terms, her terms are modified to match his, unless the employer establishes a material factor defence.

Equal work. Section 65 defines three routes: like work, work rated as equivalent under a job evaluation study, and work of equal value. The proposed retention payment concerns the third. Warehouse operatives and store staff do plainly different jobs, but different jobs can be of equal value in terms of demands such as effort, skill and decision-making.

Comparators and common terms. The comparator must be in the same employment. Where employees work at different establishments, section 79 permits comparison if common terms apply. This was the central issue in Asda Stores Ltd v Brierley [2021] UKSC 10, where the Supreme Court held that predominantly female retail store staff could compare themselves with predominantly male distribution centre workers, because common terms would have applied had the distribution employees been employed at the stores. That case is directly analogous to our situation.

The material factor defence. Under section 69, a difference is lawful if genuinely due to a material factor which is not itself sex discriminatory. Recruitment and retention difficulties can constitute such a factor, and this is the strongest argument for the payment.

Discussion of the competing positions. The case for lawfulness is that the payment addresses a specific, evidenced turnover problem in one location, is temporary, and is unrelated to sex. The case against is that the beneficiaries are predominantly male and the excluded group predominantly female, so if the work is of equal value the burden shifts to the employer. Where a defence rests on market forces, the employer must evidence the difficulty rather than assert it, and a temporary payment that becomes permanent loses its justification.

Conclusion. The payment is capable of being lawful but is not obviously so. It should proceed only with documented evidence of the turnover problem, a defined end date with a review, and a check on whether store roles might be of equal value. Given the Supreme Court’s approach in Asda, the assumption that different sites and different jobs prevent comparison is unsafe (Acas, 2025a).

Variation by agreement. The starting position is that a contract can be varied only by agreement. Contractual sick pay is a term of the contract, so unilateral reduction is a breach.

Flexibility clauses. Some contracts contain express clauses permitting variation. Their scope is construed narrowly, and a general clause permitting the employer to vary terms will not usually support a substantial reduction in a core benefit. The manager should check the contracts before assuming any such clause assists.

Implied consent through continued working. Where an employee continues working under changed terms without objection, consent may be inferred. This is unreliable where the change has no immediate practical effect, since employees may not experience reduced sick pay until they fall ill, and silence in those circumstances is a weak basis for inferring agreement.

Dismissal and re-engagement. Where agreement cannot be reached, an employer may lawfully terminate on notice and offer re-engagement on new terms. This is lawful in principle and carries substantial risk. The dismissal must be for a potentially fair reason, ordinarily some other substantial reason, and the employer must act reasonably, which requires genuine consultation, a sound business rationale and consideration of alternatives. Employees with two years’ service can claim unfair dismissal. Where twenty or more employees at one establishment are affected, collective consultation obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 apply, with a minimum thirty-day period.

The current regulatory direction. The Acas Code of Practice on dismissal and re-engagement applies, and unreasonable failure to comply permits an award adjustment of up to 25 per cent. The Employment Rights Act 2025 will further restrict the practice, making dismissal for refusing a variation automatically unfair in defined circumstances. Those provisions are not yet in force and require commencement regulations, so they do not bind the organisation today. They are highly relevant to the decision, because a practice that is lawful now may not be by the time a phased change concludes.

Constructive dismissal risk. Imposing the change unilaterally, rather than dismissing and re-engaging, risks employees resigning and claiming constructive dismissal on the basis of a repudiatory breach.

Advice. Consult genuinely and early, consider alternatives such as applying the change to new starters only, and treat dismissal and re-engagement as a last resort with legal advice. Given the direction of the 2025 Act, a negotiated outcome is considerably more attractive than it was a year ago (CIPD, 2025b).

Correcting the managers’ assumption first. The belief that this is not a true redundancy because the business is growing and headcount is unchanged is wrong. Section 139 of the Employment Rights Act 1996 defines redundancy by reference to a diminished requirement for employees to carry out work of a particular kind, not to a reduction in overall headcount. If stock-management technology reduces the need for warehouse operatives doing that particular work, those roles are redundant even if the company simultaneously recruits elsewhere. In Safeway Stores plc v Burrell [1997] ICR 523 the correct question was confirmed as whether the requirement for employees to do work of a particular kind has diminished.

Consequences of getting this wrong. If managers proceed on the basis that this is not a redundancy, they may fail to consult, fail to pay redundancy payments and dismiss for a reason that is not potentially fair. Employees with two years’ service would have strong unfair dismissal claims.

Fair process requirements. A fair redundancy requires warning and consultation with affected employees, a fair and objective selection pool, objective and non-discriminatory selection criteria, individual consultation with those provisionally selected, consideration of suitable alternative employment, and a right of appeal. The principles derive from Williams v Compair Maxam Ltd [1982] ICR 156 and remain the reference point.

Selection criteria and discrimination risk. Criteria must be capable of objective verification. Attendance records require care where absence is disability-related, and length of service may indirectly discriminate on age.

Collective consultation. Where twenty or more redundancies are proposed at one establishment within ninety days, section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires consultation with appropriate representatives, beginning at least thirty days before the first dismissal, or forty-five days where a hundred or more are proposed. Failure exposes the employer to a protective award of up to ninety days’ pay per affected employee, which is a substantial liability independent of any individual claim.

Statutory redundancy pay. Employees with two years’ service are entitled, calculated by age and service, subject to the statutory cap on a week’s pay of £751 from 6 April 2026 (Fox Williams, 2026).

Advice to the managers. Establish the pool honestly, begin consultation before decisions are made rather than afterwards, and check the numbers against the collective consultation thresholds early, because the timetable is driven by them (Acas, 2024c).

Does TUPE apply? Yes. The Transfer of Undertakings (Protection of Employment) Regulations 2006 cover two situations: a business transfer under regulation 3(1)(a), and a service provision change under regulation 3(1)(b). Bringing the training centre back in-house is a service provision change, specifically where activities cease to be carried out by a contractor and are carried out instead by the client on its own behalf. This is expressly within the regulations.

Conditions for a service provision change. There must be an organised grouping of employees whose principal purpose is carrying out the activities for the client, the client must intend the activities to continue, and the activities must be fundamentally the same after the transfer. If the company intends to run training in a materially different way, TUPE may not apply, which is worth confirming before proceeding.

The principal effects. Employees assigned to the organised grouping transfer automatically to the company on their existing terms. Continuity of employment is preserved, so service accrued with the contractor counts. Contractual terms transfer largely intact, though pension rights are treated separately. Liabilities transfer, including outstanding claims, so a discrimination claim against the contractor becomes the company’s liability.

Dismissals. A dismissal is automatically unfair if the sole or principal reason is the transfer. The exception is where the reason is an economic, technical or organisational reason entailing changes in the workforce, in which case dismissal may be fair subject to a fair process. Variations to terms are similarly void if the sole or principal reason is the transfer.

Information and consultation. Both transferor and transferee must inform appropriate representatives long enough before the transfer to allow consultation, covering the fact of the transfer, when and why, the legal, economic and social implications, and any measures envisaged. Where measures are envisaged, there must be genuine consultation with a view to agreement. Failure permits a tribunal award of up to thirteen weeks’ pay per affected employee.

Employee liability information. The contractor must provide specified information about the transferring employees not less than twenty-eight days before the transfer, covering identity, age, terms, disciplinary and grievance records and any claims.

Advice. Establish which staff are assigned to the training activity, request employee liability information early, budget for the transferring terms rather than the company’s own, and begin consultation in good time (Acas, 2025b).

The statutory framework. The Working Time Regulations 1998 provide 5.6 weeks’ paid annual leave, comprising four weeks derived from retained EU law and 1.6 weeks of additional domestic leave. They also provide daily rest of eleven consecutive hours, a weekly rest period, and a twenty-minute uninterrupted rest break where the working day exceeds six hours.

The particular difficulty with variable hours. Where hours vary week to week, “5.6 weeks” is not self-explanatory, because a week has no fixed length. This was the issue in Harpur Trust v Brazel [2022] UKSC 21, where the Supreme Court held that a part-year worker on a permanent contract was entitled to the full 5.6 weeks and that pro-rating by hours worked was not permitted under the Regulations as they then stood.

The 2024 reforms. In response, the Regulations were amended for leave years beginning on or after 1 April 2024. For irregular hours and part-year workers, entitlement now accrues at 12.07 per cent of hours worked in each pay period. The figure derives from 5.6 weeks as a proportion of the 46.4 working weeks remaining in the year.

Rolled-up holiday pay. Also from April 2024, rolled-up holiday pay is lawful for irregular hours and part-year workers. The employer may pay an additional 12.07 per cent with each period’s pay, provided it is itemised separately on the payslip. This is not available for workers with regular hours.

Calculating holiday pay where hours vary. For workers not on rolled-up pay, a week’s pay is calculated using an average over the previous 52 paid weeks, disregarding weeks with no pay and looking back up to 104 weeks to find 52 paid weeks. Holiday pay must reflect normal remuneration, so regular overtime and shift premiums are included rather than basic pay alone.

Applying this to our staff. Store and warehouse staff on genuinely variable shifts are likely to fall within the irregular hours definition, and the 12.07 per cent accrual applies. Staff on fixed contracted hours who occasionally work additional shifts are not irregular hours workers, and the conventional 5.6 weeks applies with the 52-week average for pay.

Advice to the store manager. Confirm which category each employee falls into, since applying rolled-up pay to a regular-hours worker is unlawful, and check that holiday pay includes regular additional earnings (Acas, 2024b).

AC 4.2 An employee and her partner both work for the company and are expecting a child. They are confused about eligibility, notice requirements and how shared parental leave would operate if both parents are employed by the same employer. Explain to them the main principles of maternity, paternity and shared parental rights to help them plan effectively.

Maternity leave. All employees are entitled to 52 weeks, comprising 26 weeks’ ordinary and 26 weeks’ additional maternity leave. This is a day one right with no qualifying service. Two weeks’ compulsory maternity leave must be taken immediately after birth, four in a factory setting. Notice must be given by the end of the fifteenth week before the expected week of childbirth. Statutory maternity pay requires 26 weeks’ continuous service by the qualifying week and earnings at or above the lower earnings limit, and is paid for 39 weeks at 90 per cent of average weekly earnings for six weeks, then the lower of that figure or the statutory rate, currently £194.32 per week from 6 April 2026 (Baker McKenzie, 2026).

Paternity leave, and what changed. One or two weeks’ leave, which may now be taken in separate blocks within 52 weeks of birth. From 6 April 2026 paternity leave became a day one right: the previous 26-week qualifying period was removed by the Employment Rights Act 2025. Statutory paternity pay still requires 26 weeks’ service, so the leave and the pay now have different qualifying conditions, which is a common source of confusion. The previous rule preventing paternity leave being taken after shared parental leave has also been removed.

Shared parental leave. SPL allows the mother to curtail her maternity leave and share the balance with her partner. Up to 50 weeks of leave and 37 weeks of pay may be shared. Both parents must meet a continuity of employment test and an earnings test, and eight weeks’ notice must be given of each period of leave. Leave may be taken in up to three blocks each, and may be taken concurrently, which is the point most relevant to this couple.

Where both parents work for the same employer. There is no legal obstacle. Each parent gives notice to the same employer, and each retains their own entitlement. The employer may not refuse SPL, though it may decline to agree a discontinuous pattern, in which case the employee may take the leave in a single continuous block. Practically, this couple can take leave at the same time, which many parents value most in the early weeks.

Advice. Curtail maternity leave and notify SPL entitlement at least eight weeks before the first period. Check the pay position separately from the leave position, since the qualifying conditions differ, and confirm current rates before planning finances (CIPD, 2026).

AC 4.3 A full-time administrative employee based at head office has submitted a formal request to reduce her working hours from five days per week to four. She has stated that this change would help her manage caring responsibilities outside work. Her line manager is unsure how to respond and is concerned about the impact on team workload and service delivery. Explain the employee’s employment rights relating to flexible working in this case.

A day one right. From 6 April 2024, the right to request flexible working is available from the first day of employment, the previous 26-week qualifying period having been removed. The employee here plainly qualifies.

What the right involves. It is a right to request, not a right to receive. The employee may make two statutory requests in any twelve-month period, and the employer must decide within two months including any appeal, unless a longer period is agreed. The employee is no longer required to explain the effect on the business, and the employer must consult before refusing.

Grounds for refusal. An employer may refuse only on one or more of eight statutory grounds: burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes.

Applying this to the manager’s concerns. Workload impact and service delivery may fall within the third and second grounds respectively, but neither is established by assertion. The manager must consider whether the work can be reorganised, whether the fifth day can be covered, and what the evidence actually shows. A refusal recorded as “detrimental effect on service delivery” without supporting reasoning is vulnerable.

The discrimination overlay, which is the greater risk. The request is linked to caring responsibilities. Refusing a request from a woman with caring responsibilities may amount to indirect sex discrimination under section 19 of the Equality Act 2010, since a requirement to work full time places women at a particular disadvantage. Unlike a flexible working complaint, which is capped at eight weeks’ pay, a discrimination claim is uncapped and includes injury to feelings. If the caring responsibility relates to a disabled person, associative discrimination may also arise.

Advice to the line manager. Meet the employee and discuss the request properly, since consultation is now a statutory requirement rather than good practice. Consider a trial period, which frequently resolves concerns about workload without a permanent commitment. If refusal is genuinely necessary, identify the specific statutory ground and record the evidence supporting it. The employment law risk of a poorly reasoned refusal sits in the Equality Act rather than in the flexible working provisions themselves (CIPD, 2025c).

References

Acas (2024a) Code of Practice on disciplinary and grievance procedures. London: Acas.

Acas (2024b) Holiday entitlement and pay. London: Acas.

Acas (2024c) Managing redundancy: step-by-step guide. London: Acas.

Acas (2025a) Equal pay: advice for employers. London: Acas.

Acas (2025b) TUPE: transfers of employment. London: Acas.

Asda Stores Ltd v Brierley [2021] UKSC 10.

Baker McKenzie (2026) United Kingdom: April 2026 increases to statutory payments and new rights. London: Baker McKenzie.

Chartered Institute of Personnel and Development (CIPD) (2024) Selection methods: factsheet. London: CIPD.

Chartered Institute of Personnel and Development (CIPD) (2025a) CIPD Good Work Index 2025: survey report. London: CIPD.

Chartered Institute of Personnel and Development (CIPD) (2025b) Employment law update: Employment Rights Act 2025. London: CIPD.

Chartered Institute of Personnel and Development (CIPD) (2025c) Flexible working practices: factsheet. London: CIPD.

Chartered Institute of Personnel and Development (CIPD) (2026) Maternity, paternity and shared parental leave: factsheet. London: CIPD.

Employment Rights Act 1996, c. 18. Available at: https://www.legislation.gov.uk/ukpga/1996/18 (Accessed: 26 August 2026).

Employment Rights Act 2025, c. 36. Available at: https://www.legislation.gov.uk/ukpga/2025/36 (Accessed: 26 August 2026).

Equality Act 2010, c. 15. Available at: https://www.legislation.gov.uk/ukpga/2010/15 (Accessed: 26 August 2026).

Fox Williams (2026) The April 2026 changes: your step-by-step guide and action checklist. London: Fox Williams.

Harpur Trust v Brazel [2022] UKSC 21.

Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15.

Safeway Stores plc v Burrell [1997] ICR 523.

Seldon v Clarkson Wright & Jakes [2012] UKSC 16.

The Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246. Available at: https://www.legislation.gov.uk/uksi/2006/246 (Accessed: 26 August 2026).

The Working Time Regulations 1998, SI 1998/1833. Available at: https://www.legislation.gov.uk/uksi/1998/1833 (Accessed: 26 August 2026).

Trade Union and Labour Relations (Consolidation) Act 1992, c. 52. Available at: https://www.legislation.gov.uk/ukpga/1992/52 (Accessed: 26 August 2026).

Williams v Compair Maxam Ltd [1982] ICR 156.

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