The British are coming!
Well, not really, but when it comes to employment law, considering the differences, would the U.S. be better off with a bit of a British invasion—or vice versa? The answer to that probably depends on whether you’re the employer or the employee.
While employment laws in the U.S. generally favor the employer, the opposite is true in the U.K., where laws tend to lean more toward the protection of employees. Models of government affect the way employment laws are created as well.
There are several U.K. employment laws that mirror those of other European countries as an obligation to the U.K.’s participation in the European Union (EU), such as the Equality Act 2010 and parental leave rights. Some of these laws are similar to those in the U.S. For instance, the Equality Act 2010 covers the same protected classes as Title VII of the Civil Rights Act of 1964, but also includes protections for gender reassignment and civil partnerships.
Some of the most prominent employment laws that are different between the U.S. and the U.K. are as follows:
Age Discrimination. In the U.S., age discrimination protection is only extended to employees ages 40 and older. In the U.K., this protection also applies to a younger employee claiming discrimination on the basis of youth (as do some U.S. state laws). Plus, you may be surprised to learn about some other protected groups in the U.K.
Sexual Orientation/Gender Identity. One of the protected classes in the U.K. deals with sexual orientation and gender identity. This is not protected at the U.S. federal level, however, many states and local government now provide equivalent protection. Important note: The Equal Employment Opportunity Commission has taken the stance that Title VII’s prohibition on sexual orientation covers both sexual orientation, and gender identity or expression. Time will tell whether the courts agree.
U.S. law recognizes the doctrine of “at-will” employment in which the employment relationship is voluntary and may be terminated by either party with or without cause and with or without prior notice. Employment and collective bargaining agreements will sometimes bar at-will termination. In the UK, ALL employees without exception will have a contract (even if it has not been written down); furthermore, after two years, they also benefit from legislative provisions intended to protect an employee from termination without good cause. Failure to follow the proper process, have a good reason or provide adequate notice can result in unfair dismissal claims against the employer with statutory damages.
Maternity Leave - In the UK, you can take up to a year off for maternity leave before losing employee rights. Employees must provide notification to an employer 15 weeks before the due date. Employees are eligible for pay during maternity leave if they have been employed for at least 26 weeks up to the ‘qualifying week’ – the 15th week before the expected week of childbirth. In contrast, mandatory maternity leave pay in the US is the exception (San Francisco) and not the rule. Further, in the US, after the period of disability, parental leave must be offered to men and women alike.
Paid sick Leave – in the UK, all employees are entitled by law to be paid "Statutory sick pay" (SSP) when they are off work for sickness for more than 3 days. There is no statutory limit on the amount of time which employees may take off due to illness or injury. However, their entitlement to SSP ceases after they have been absent for sickness for more than 28 weeks in any three-year period. In addition, it is quite common for employers to offer more generous contractual sick pay arrangements. In the US, while the number of jurisdictions mandating sick pay is growing, it is still the exception and not the rule and the benefits are much less than in the UK
Holiday/Vacation - In the US, employers are not mandated to provide vacation. In fact, exempt employee are all but expected to work during vacation or they will be deemed not committed. In the U.K. holidays are not only mandated but employers even have a duty to encourage employees to take their vacation rights. They certainly cannot make employees work during them.
Caregiver Leave. In the U.S., under the Family and Medical Leave Act, employees can take time off to care for a spouse, child or parent with a serious health condition. Some states go further, for example, California and New Jersey also cover domestic partner. The U.K. goes even further—much further. The key is dependency, and we’ll talk about what that means during the chat.
Regardless of the differences that exist in current laws, it’s a good bet that evolving cultural considerations, the expansion of the global workforce and major shifts in workplace demographics will significantly impact all aspects of employment law over the next ten years.
Jonathan and Jon are #multilaw colleagues and friends. We’ll chat about employment law differences in the U.S. and the U.K. and how these differences affect employees and employers.
Q1. What U.S. and U.K. employment laws do you find beneficial for an employee in either country?
Q2. What U.S. and U.K. employment laws do you find most challenging as an HR professional working for an organization in either country?
Q3. Which U.S. employment laws would you like to see adopted by the U.K. in some form?
Q4. Which U.K. employment laws would you like to see adopted by the U.S. in some form?
Q5. Which different U.K.-U.S. employment laws cause the most angst for HR in organizations with locations in both countries?
Q6. How do you think the expansion of the global marketplace and workforce will affect employment laws in the future?
Q7. What changes to U.S. or U.K. employment laws do you anticipate in each country as a result of changing workforce demographics?
Q8. What changes to U.S. or U.K. employment laws do you anticipate as a result of outcomes of future U.K. or U.S. national elections?