Scenario

You work for a large UK-based NHS trust in its People Management department where you specialise in providing advice and guidance to colleagues about employment law issues. In the last few days, you have received ten emails that you now need to answer. These are summarised below. Provide answers to each of these, aiming in each case to do so in around 390 words so that the total length of your assessment is 3900 words in length (+ /- 10%). Your emails should answer each of the enquiries as fully as possible and you should take care to justify all the points you make.     

Task

Email 1 (AC 1.1)

A fellow people management officer estimates that 20% or so of her working days are taken up with activity that is created as a result of regulations. She states this is time she would prefer to spend more productively improving the employment experience that the Trust provides. To help her understand why it is important to spend time dealing with issues that relate to employment law, send a reply that includes an evaluation of the aims and objectives of employment regulation.

Your answer:

Subject: Why Employment Law is Central to Strengthening Our People Strategy

Dear Sarah,

I understand and acknowledge your concern regarding the allocation of 20 percent of your working days to employment regulations. I appreciate your need to invest more in proactive efforts that can enhance the employee experience at the Trust. However, I would like to provide some background on why our legal requirements are essential and central to providing a people-centered workplace.

Employment regulations are in place to ensure a fair, safe, and inclusive working environment. The objectives of these laws are to streamline administrative processes and to protect employees throughout the entire lifecycle of their employment. For example, the Employment Rights Act 1996 provides critical protection against unfair dismissal and redundancy payments, accompanied by a clear written statement of terms. These standards provide some form of assurance and transparency to employees, especially those who may be vulnerable or unfamiliar with their rights, ensuring they are treated with respect and in an ethical manner.

Another critical area is health and safety legislation, such as the Health and Safety at Work Act 1974. It is the legal and ethical duty of the Trust to ensure the physical and psychological wellbeing of our colleagues. The lack of a consistent regulatory framework allows unsafe and unfair practices to develop easily, and the result impacts morale and, ultimately, patient care. Our time spent on risk evaluations, wellbeing programs, and training is not only legal but also part of a proactive process, contributing to the development of an impressive working culture.

The employment regulation also reinforces our commitment to equality, diversity, and inclusion. The Equality Act 2010 law seeks to eliminate discrimination based on characteristics that are considered protected, such as sex, race, disability, and age. Making this legislation part of our recruitment, development, and grievance processes is not only a risk-aversion measure, but it also helps us create a workplace where everyone feels valued and has an equal opportunity to thrive, which aligns with the Trust’s core values and people strategy.

Instead of considering compliance as an obstacle to strategic HR work, this is a way to manage employees successfully. By making colleagues feel secure, honoured, and treated equally, we can attract, retain, and nurture talent, thereby enhancing engagement and organisational performance.

Kind Regards,

People Management Officer

NHS

Word count: 387

Email 2 (AC 1.2)

You are asked to brief a senior manager in your team about the status of judgements made by the European Court of Justice (ECJ) prior to the UK’s departure from the European Union in 2020. Do these remain good law? Are they still binding on the UK courts? Or can they now be disregarded?  He asks for an example by way of illustration. 

Your answer:

Subject: Legal Status of ECJ Judgments After the UK’s Departure from the EU

Dear Steve,

In response to your inquiry about the extent to which judgments of the European Court of Justice (ECJ) issued before the UK left the EU on 31 December 2020 will remain relevant to UK employment law, I would like to draw your attention to prevailing views on the matter. This remains a significant consideration for tribunals and courts, particularly given that much of our domestic employment regime was historically based on EU directives, including those on discrimination law, working time regulations, and TUPE safeguards.

Status of Pre-Exit ECJ Case Law

European Union (Withdrawal) Act 2018 retained all EU-derived domestic legislation and all pre-exit judgments of the ECJ as retained EU law. It implies that case law of ECJ determined prior to exit day remains a constituent part of the law of the UK and is binding on inferior courts and tribunals in the same manner that a decision of the Court of Appeal would usually be binding on lower courts. Consequently, the Employment Tribunals and the Employment Appeal Tribunal should not stop using these interpretations until and unless a UK superior court or Parliament changes them.

Nevertheless, senior appellate courts, namely the Court of Appeal and the Supreme Court, are also authorized by the Act to deviate from ECJ retained case law where they deem it appropriate. This resembles the test used when the Supreme Court is leaving its own past cases, i.e. leaving cases should be infrequent and well-justified. This provides a sense of stability in the law while allowing independent development of UK employment law.

Post-Exit ECJ Judgments

Judgments of the ECJ after 31 December 2020 do not have any force as such on UK courts. They are considered where appropriate, but only as persuasive authority, in much the same manner that the decisions of Commonwealth jurisdictions could be so. The UK courts thus retain the discretion to adhere to or depart from such subsequent rulings.

Please let me know whether you would like a briefing to note on the application of this to specific policies, such as on-call arrangements or rest breaks.

Kind Regards

People Management Officer

NHS

Word count: 368

Email 3 (AC 2.1) 

A colleague asks for advice about ‘occupational requirements’. She wants to know when she may and may not seek to stipulate that a job in her directorate must be carried out either by a man or a woman. Explain this to her, considering the main principles of discrimination law in recruitment and selection in your email with reference to specific examples.  

Your answer:

Subject: Recruitment Approach – Ensuring Compliance with Equality Legislation

Dear Kelvin,

I am glad to receive your call to talk about your recruitment strategies in the new departments that are being set up in the Trust. I realise that you are suggesting that by focusing on recruiting younger male applicants, we might decrease the number of possible leaves in the future due to retirement or maternity. Although I like the operational issues of your reasoning, it is worth noting that such a strategy would put the Trust in great legal jeopardy and would be against our values as an NHS employer.

The UK recruitment is regulated by the Equality Act 2010 that safeguards people against unfair treatment due to certain traits, such as age, sex, pregnancy and maternity, and others. It would be direct discrimination to make hiring decisions based on assumptions about these characteristics. Such differentiation is only allowed by the law in extremely exceptional cases of a Genuine Occupational 

Requirement–this would not be the case in the jobs under consideration.

It would be against the age and sex discrimination laws to lock out applicants simply on the basis that they are female or are at an advanced age in their career. The basis of employment selection should never be on the perceived chances of absence in the future or stereotypes associated with personal traits of a candidate but rather on his or her capacity, experience, and appropriateness.

Legal Insight and Risk Consideration.

Cases in employment tribunal, like Price v Civil Service Commission (1977) have consistently confirmed that convenience in staffing cannot be used to justify discrimination. Any action taken against the Trust may cause a tarnished image, huge compensation claims and a blow to the morale of the workforce. Being an NHS organisation, the trust of the population is the most important, and discriminatory hiring might destroy the belief in our equality.

Recommended Actions

In order to have a strong compliance and equitable hiring, I would suggest:

Writing inclusive and non-discriminatory job adverts.

• Applying systematic, evidence-based selection.
• Training hiring managers on discrimination and bias.
• Maintaining a record of recruitment decisions to show fairness.

A comprehensive recruitment policy ensures that we are not only legally safe, but also that our workforce is more diverse, competent, and resilient, which contributes to the improved performance of both our colleagues and patients.

In case you need help with the review of your recruitment materials or interview frameworks, I would be glad to help.

Kind regards,

People Management Officer

NHS

Word count: 410

Email 4 (AC 2.2)

A nurse manager wants to upgrade two of her health care assistants (HCAs) using some surplus money left over from a research project she has been carrying out. She wants to move them from the A grade on which the vast majority of HCAs in the Trust are employed to the higher B grade. The two people concerned are men. 80% of the HCAs in your Trust are women. She is asking you to approve the upgrade. Include discussion of the legal requirements of equal pay in your reply.

Your answer:

Subject: HCA Grade Upgrade – Equal Pay Considerations

Dear Naomi, 

I am pleased to present your proposal on the two Health Care Assistants whom you would like to transfer to Grade B with excess research funds. I like the fact that you are willing to acknowledge the efforts they have put in your team and that you want to use the available resources to facilitate career advancement.

But we cannot grant any change of grade without taking into consideration our legal obligations with regard to equal pay and fair treatment. The Equality Act 2010 demands that men and women who do equal work should be paid and given equal contractual terms. This covers work that is:

• The same or broadly similar
• Equivalent by a job evaluation scheme.
• Equal in skill, effort and responsibility.

Since 80% of the HCAs in the Trust are women, the two male employees are the only ones who should be upgraded without any clear and objective explanation of the necessity to do so, according to the job requirements, which would pose a severe threat of a sex discrimination and an equal pay claim. The legislation is explicit that the disparity in pay should not be founded on gender, or any presumptions regarding individual workers, but on quantifiable job attributes.

Any grade change should show one or more of the following:

Their role is not the usual HCA duties but substantively different.

A job assessment indicates that the job deserves a higher grade.

 It has a real working need distinctive of those people.

Failure to do so would mean that the selective upgrading of the two male HCAs would result in a claim by other members of the same position- especially the female counterparts who are receiving less pay despite doing the same job.

In order to move forward, I would suggest:

• Formal review of the roles and responsibilities of all involved HCAs.
• Making any upgrade evidence-based and transparent.
• Thinking of a broader development pathway that can be open to all HCAs that fit certain criteria.

I will be quite happy to assist you in reading job descriptions or discussing how the excess funds might be utilized to better serve development opportunities within your team.

Please do tell me when it is convenient to talk about next steps.

Kind regards,

People Management Officer

NHS

Word count: 391

Email 5 (AC 3.1)    

A colleague is concerned that a radiographer who recently resigned from the Trust may be about to make a constructive dismissal claim in relation to a change that was made recently to his working hours.  She asks for your advice about the circumstances in which such a change can form the basis of a successful constructive dismissal claim and about how long former employees have to make claims before they are considered to be ‘out of time’ by the Employment Tribunal Service. 

Your answer:

Subject: Potential Constructive Dismissal Claim – Change to Working Hours

Dear Kelvin,

I am glad you have contacted us regarding the issue of the radiographer who recently left the Trust and might be contemplating a constructive dismissal claim. We should know the legal requirements of such claims and the time constraints to such claims, in order to reasonably evaluate any risk.

In what cases can contractual changes result in constructive dismissal?

Constructive dismissal is alleged when an employee quits his or her job due to the fact that his or her employer has essentially violated the terms of his or her employment contract. One of the significant and compulsory changes to working hours, particularly when it concerns the existing shift schedules, the overall number of hours contracted, or the capacity of an individual to balance his or her personal life, can be considered such a violation in case the employee did not consent to it.

To make the claim successful, the employee has to demonstrate that:

• The actions of the Trust constituted a gross breach of contract.
• One of the reasons why they resigned was the change.
• They did not wait too long before resigning because it may mean that they were accepting the new terms.

In case the radiographer was complaining and felt disregarded, that would also help them.

Where there are clauses of flexibility in the contracts, they should be well written and should be applied fairly and reasonably. In most instances, employment tribunals require that employers should consult with employees and give them due notice before any major change is made.

What is the time limit of former employees to make a claim?

Constructive dismissal claims should generally be filed in an Employment Tribunal:

Three months less one day of the final day of employment.

This is a very strict deadline. The timescale may however be suspended as the person uses ACAS Early Conciliation, which is a mandatory process before filing a tribunal claim.

Recommended actions in the future.

In order to minimize the exposure to such claims in future, I suggest that we:

• Consult employees prior to making major changes to the contractual terms.

• maintain written records of communications, any objections and our responses.

• Promote the grievance process in case of problems.

• Consult HR or legal advice when making major alterations to working arrangements.

In case of necessity, I will be able to assist with the review of our standard contracts and provide further advice to the managers on how to approach contractual consultations.

Do tell me what I may do more.

Kind regards,

People Management Officer

NHS

Word count: 433

Email 6 (AC 3.2)

A senior manager is leading on a reorganisation in his directorate. Fifty posts are to be lost, some of which will involve compulsory redundancies. He is keen to get on with the process quickly, simply dismissing the poorest performers and avoiding as much by way of time-consuming consultation as possible. Include discussion of the legal requirements relating to redundancy in your answer.

Your answer:

Subject: Legal Requirements for Redundancy During Directorate Reorganisation

Dear Kelvin,

I would like to thank you in explaining your plans in the next restructure in the directorate and the necessity to cut down the workforce by 50 posts. I understand the pressure that you are under to effect these changes within a short period of time. But one area where the employment law has very clear requirements is compulsory redundancy and we should ensure that we go through a fair and compliant process.

What is a legal redundancy?

Redundancy can only be legal in cases where the position is actually unnecessary as a result of organisational change, reduction of services or as a result of technological or structural restructuring. It cannot be a shortcut to getting rid of employees whose performance is a concern. In case the Trust tried to fire people based on this under the pretext of redundancy, we would be exposed to several unfair dismissal claims. The issues with the capabilities should be addressed via the appropriate performance management channels instead.

Collective consultation responsibilities.

Since over 20 workers are at risk in 90 days, collective consultation is a legal provision under the Trade Union and Labour Relations (Consolidation) Act 1992. In the case of your restructure, where 50 posts are affected, consultation should:

• Start no less than 30 days prior to the initial dismissal.

• Engage recognised trade unions or elected employee representatives.

• Permit constructive discussion and negotiation.

Consultation is not a choice or a favor – failure to do so or to do it inadequately may result in tribunal claims and the award of up to 90 days of gross pay to each aggrieved employee.

Ensuring a fair process

To keep within the law and to guard the Trust against legal attack, redundancy procedures should:

• Determine the roles to be at risk according to the new structure.
• Use objective and consistent selection criteria (e.g., skills, qualifications)
• Provide redeployment and trial wherever feasible.
• Have group and individual consultation meetings.

These measures assist in showing that organisational need was used to make decisions and not personal judgment.

The importance of going through the process.

Going too quickly or focusing on underperformers may hurt our relationship with employees and trade unions, result in expensive claims, and damage the reputation of the Trust. Consultation does not only meet the legal requirements, but also provides a voice to the staff and can help to find solutions to retain skills and minimize forced job loss.

Next steps

To secure the organisation and have a smooth process of restructure, I would recommend:

• Early contact with union representatives.

• Creation of an effective and transparent selection process.

• HR participation in all levels of planning and consultation.

I would be pleased to collaborate with your team to facilitate the process and make sure that all the legal requirements are fulfilled.

Kind regards,

People Management Officer

NHS

Word count: 472

Email 7 (AC 3.3)   

Your Chief Executive Officer is about to open preliminary negotiations with a neighbouring hospital trust about the possibility of merging their two major pharmacy operations. The new centralised pharmacy will be based in your Trust but will provide services to the neighbouring trust as an expanded operation. She asks you to explain the major relevant rights that any employees involved in the merger might have in respect of the Transfer of Undertakings (i.e. TUPE) regulations should it go ahead at some date in the future.    

Your answer:

Subject: TUPE Implications for Pharmacy Merger Proposal

Dear Kelvin,

Thanks and I will meet you as we have a conversation to start a possible merger of pharmacy services with the neighbouring hospital. Since the strategy will imply the sale of some of their staff to a new service centralised within our Trust, the Transfer of Undertakings (Protection of Employment) Regulations 2006 -TUPE- are most likely to be used in the event that the project is proceeded with.

The TUPE laws are there to put a stop to the disadvantage of the employee who has not been treated fairly because of the business or service transfer. It enables them to have a job security and safeguards major employment rights in the event of organisational restructuring of such nature.

How to transfer employees: vital TUPE Protections.

 Continuation of Employment

The employees of the pharma-service to which the transfer was to take place would automatically be transferred to employees of our Trust on the date of transfer. Their working period would not be interrupted, and their service tenure would be not affected.

 Terms and Conditions are not revoked.

Each of the contractual aspects of payment, working hours, yearly leave, allowance, and any other forms of benefits should be carried forward untouched. The deviation of terms would only be allowed under very restricted conditions, when there is a reasonable economic, technical, or organisational (ETO) case which leads to a change of staffing.

 Guarantee of Transfer-Related Dismissals.

The merger would be considered as automatically unfair in case of dismissals that are directly connected to the merger unless the reduction or restructuring is based on a legitimate ETO reason.

 Right to Information and Consultation.

Both organisations are to give information to the employees and/or the recognised unions regarding the transfer, the expected times of the transfer and any changes suggested. Considerable consultation is required in cases where changes are expected. Losses to do so would result in compensation of up to 13 weeks payment per victimized worker.

Further Actions to achieve Compliance.

I recommend that we:

• Start early interaction with the representatives of the staff at both Trusts.
• Perform a due diligence of the roles and terms of the contract being transferred.
• Have a shared working group on HR to manage the communication and consultation.
• Audit any intended service redesign so that decision is made in line with ETO requirements.

These measures will assist in assisting the staff to navigate through the transition and at the same time make sure we do not violate our legal responsibilities.

Kindly inform me of how you would wish to be proceeded with. I will be pleased to help with the planning, communication materials, or additional guidance when negotiations proceed.

Kind regards,

People Management Officer

NHS

Word count: 451

Email 8 (AC 4.1)

You are asked to explain the regulatory requirements relating to the calculation of holiday pay to a new colleague. There are several dozen nurse bank staff who are employed regularly but on a casual basis to work in his department. They mainly cover shifts when permanently employed colleagues are absent and he is keen to ensure that their holiday pay is calculated fairly and lawfully.   

Your answer:

Subject: Holiday Pay Requirements for Casual (Bank) Nursing Staff

Dear Kelvin,

This is in response to your inquiry regarding whether the bank nurses should be paid overtime during holidays to help cover periods of shortage in your department. This area is one of the most important ones regarding the compliance because casual workers are not inferior to other workers regarding their statutory rights to paid annual leave, which is included in the Working Time Regulations 1998 (WTR).

In spite of the fact that bank staff has the work that is flexible and non-hours-guaranteed, they still legally are considered to be workers, that is, they have the right to 5.6 weeks of paid annual leave per year, but pro-rata based on the actual hours of work.

 How to calculate Holiday Pay Right.

Holiday pay should be based on the average pay and not only on basic contractual hours in order to facilitate fairness and compliance.

The existing laws stipulate:

• Paid vacation to be computed on the average weekly compensation in the last 52 paid weeks.

• Any week of no work done should not be counted in the calculation.
• Where the worker has less than 52 paid weeks, the amount of paid weeks available should be used.
• There should be all the relevant earnings included – overtime rate, unsocial hours payment, and enhancements.

This will be an effort to see that the variable-hours employees such as the bank nurses are paid their holiday in accordance to the nature of their working schedule.

[?][?] About Rolled-Up Holiday Pay

In the NHS, holiday has traditionally been paid as a percentage of hourly rates on top of other areas. Nonetheless, this practice should not be encouraged unless:

 The holiday factor is distinctly indicated on payslips.

 The total entitlement is still in compliance with or surpasses statutory requirement.

 Employees are motivated and empowered to actually take leave, and not to be given an additional salary.

In case of a possibility, it is better to use the preferable method of lawful allocation and payment of holiday when the leave is taken basing on the 52-week reference method.

Suggestions to Your Team.

In order to facilitate compliance and transparency, I would recommend:

• Revising payroll procedures to make sure that the proper averaging provisions are being used.
• Making employees understand clearly how their entitlement is arrived at.
• Controlling that employees are taking holidays in due manner during the year.

Keeping proper records of hours worked and the leaves taken.

I would also be pleased to help with more such items as the calculation templates, sample staff communications, or advice on local rostering system.

Kind regards,

People Management Officer

NHS

Word count: 375

Email 9 (AC 4.2)

A member of staff who is pregnant asks you to explain to her the major ways in which maternity leave and shared parental leave differ. She is considering which of these options would be most beneficial to her and her partner and is looking for your guidance before making her decision. 

Your answer:

Subject: Key Differences Between Maternity Leave and Shared Parental Leave

Dear Kelvin,

This is because of your question on whether the bank nurses are supposed to be paid extra times during the holidays to assist in clearing the gaps during the times of shortage in your department. It is one of the most significant areas as far as the compliance is concerned since the casual workers are not any lesser than other workers in terms of their statutory right to paid annual leaves, which is subject to the Working Time Regulations 1998 (WTR).

Despite the fact that bank employees are granted the work that is not guaranteed to be hours and flexible, they remain workers in legal terms, i.e. are entitled to 5.6 weeks of paid annual leave per year, but in a pro-rata manner depending on the hours that they actually work.

 Calculating holiday pay Right.

The average pay should be introduced as a basis of the holiday pay and not just on the basic contractual hours in a bid to ensure fairness and compliance.

The existing laws stipulate:

* Paid vacation is to be calculated based on the average weekly payment during the past 52 paid weeks.

A week off or one that was not working should not be included in the calculation.

In case the worker is under 52 paid weeks, paid weeks available ought to be applied.

It should be made up of all the relevant earnings that include overtime rate, unsocial hours payment and improvements.

This will be an attempt to ensure that the variable-hours workers like the bank nurses are paid their holiday according to the nature of the working schedule.

About Rolled-Up Holiday Pay

Traditionally, in the NHS, holiday has been paid as a percentage of the hourly rates in addition to other areas. However, this must not be promoted unless:

 Holidays factor is clearly pointed out on payslips.

 The entire amount of entitlement remains within or beyond the statutory requirement.

 The employees are encouraged and enabled to actually take leave, and not to receive an extra salary.

Under an eventuality, the more desirable approach of legal allocation and payment of holiday is preferable in taking the leave based on the 52-week reference method.

Suggestions to Your Team.

To enable the compliance and transparency, I would suggest:

• Revision of the payroll to ensure that the correct averaging provisions are being availed.
• Getting employees to realize clearly how their entitlement is determined.
• Managing the fact that workers are taking holidays in proper way throughout the year.

Maintaining accurate records regarding the number of hours worked and the leaves.

I would also be happy to assist with other of this sort like the calculation templates, sample staff communication or guidance on local rostering system.

Kind regards,

People Management Officer

NHS

Word count: 378

Email 10 (AC 4.3)

A colleague in the People Management team has recently received a letter from a newly appointed administrative officer who is employed to work on your main hospital site. She is formally requesting the right to work from home on three days each week. Your colleague does not wish to accede to this request for fear that it will encourage other administrative staff to demand the right to work from home too and that this will reduce the quality of the service the team provides. Include an explanation of employment rights in relation to flexible working in your answer.

Your answer:

Dear Kelvin,

Thank you for asking for advice regarding the flexible working request from your newly appointed administrative officer, who has asked to work from home three days per week. Below is guidance to ensure we manage this fairly and in line with legal expectations.

Legal Framework

Employees with 26 weeks’ continuous service have a statutory right to request flexible working under the Employment Rights Act 1996. This can include changes to working location, such as homeworking. While the employee’s exact service date should be confirmed, if eligible, her request must be considered reasonably.

We must:

• Review the request fairly
• Meet with the employee to discuss proposals
• Make a decision based on business needs
• Give a response within 3 months (including appeal outcome)

The Acas Code of Practice supports this and encourages early and constructive discussion.

How to Proceed

Acknowledge the request in writing

Invite her to a meeting to explore how the arrangement would work in practice.

She may be accompanied by a colleague or union representative if she wishes.

Assess operational impact

Consider:

Which duties require staff to be onsite

Demand for presence in patient-facing administrative areas

Impact on service quality, team communication, and supervision

Consider a trial period

If the request appears workable but you have concerns, a time-limited trial (e.g. 3 months) can help assess suitability.

Grounds for Refusal (If Applicable)

If the request cannot be accommodated, refusal must be based on one of the eight statutory reasons, such as:

Detrimental impact on service delivery

Inability to reorganise duties among existing staff

Insufficient work available during proposed homeworking hours

Any decision must be evidence-based and documented to ensure fairness.

Additional Considerations

Each case must be considered individually — blanket refusals risk discrimination claims, especially if linked to childcare or disability (Equality Act 2010).

Ensure clear, consistent messaging across the team to manage expectations and avoid perceived unfairness.

Next Steps

• Schedule the meeting within the next 10 working days

• Gather information about her role requirements and current team coverage

• Let me know if you would like support during the discussion or when drafting the response

I’m happy to help further as needed to ensure that our approach remains fair, legally compliant, and aligned with service priorities.

Kind regards,

People Management Officer

NHS Trust

Word count: 378