Beginning Employment Law

James Marson

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781317807766
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Whether you're new to higher education, coming to legal study for the first time or just wondering what Employment Law is all about, Beginning Employment Law is the ideal introduction to help you hit the ground running. Starting with the basics and an overview of each topic, it will help you come to terms with the structure, themes and issues of the subject so that you can begin your Employment Law module with confidence.

Adopting a clear and simple approach with legal vocabulary explained in a detailed glossary, James Marson breaks the subject of Employment Law down using practical everyday examples to make it understandable for anyone, whatever their background. Diagrams and flowcharts simplify complex issues, important cases are identified and explained and on-the- spot questions help you recognise potential issues or debates within the law so that you can contribute in classes with confidence.

Beginning Employment Law is an ideal first introduction to the subject for LLB, GDL or ILEX and especially international students, those enrolled on distance learning courses or on other degree programmes.

Chapter 1

An introduction to the study of employment law

INTRODUCTION

Welcome to Beginning Employment Law. This book will introduce many of the most significant aspects of employment law and those which will undoubtedly feature in the syllabi of university courses offering an employment law module. It is written in the hope of giving you an accessible introduction to the most important issues in employment law, and that it will act as a springboard for you to go on and seek out materials to further your understanding of the many debates in this dynamic area of law.

THE TOPICS IN EMPLOYMENT LAW

The book begins the topic of employment law by identifying the key institutions involved in governing relations between the parties, and this applies at domestic and international levels. Then the details of the contract of employment, its sources and terms are identified before the text continues with a look at the first substantial issue, employment status. This is a matter of crucial significance as it acts as a gateway to many rights and obligations. Discrimination is then considered, along with pay in its widest sense and the requirement for equality of pay between men and women. The following three chapters deal with the other common reasons for employment disputes and claims to tribunals – terminations. Distinguishing between wrongful, unfair and constructive dismissal, and explaining the obligations imposed on employers when making employees redundant or when transferring a business are explained, as getting this area of law wrong can be very expensive to both parties to the relationship. The book concludes with an examination of industrial relations and the extent to which employees have power to bargain with the employer, and the employer’s rights against trades unions in the event of industrial action.

UNIVERSITY STUDY: SELF-DIRECTED LEARNING

Modes of study at university vary depending on the subject being read, the institution, and the lecturer’s teaching style (among other factors). However, it is common that a lecture to the student body, with corresponding seminars/tutorials, will be the model adopted. It is important to appreciate what each session is attempting to do.

Lectures

Lectures aim to give a broad overview of the substantive content of the subject. Depending on the content of the employment law module that you are studying, it is likely that you will have at least one or more sessions on, for example, employment status. The lecture will either give you a broad overview of the statutory and common law sources, highlighting the issues that you need to consider further before attending the seminar, or it may assume prior reading and identify key debates and nuances in the law for you to take into consideration when preparing for seminar discussions. Note that lectures are often a one-way system of delivery, with little interaction between the lecturer and audience.

Seminars

In seminars you have the opportunity to question colleagues and your tutor, to test ideas, and to practice your answers to essay-type or problem-based questions. They typically provide you with the ability to develop informed opinions, develop your research skills and ensure that you have found the most apt resources to enable you to apply legal rules, principles, and doctrine, and apply the law to problem situations, and develop your advocacy skills through debates, group discussions and presentations. These seminars, I would suggest, are where your real learning will take place. They provide continuous and immediate feedback. I recommend that you never lose sight of the fact that attendance at seminars, having fully prepared and engaged with the topic, will almost certainly guarantee you success in assessments. Many students are increasingly concerned with feedback and opportunities for constructive criticism to help them hone their skills and improve performance in assessments – seminars will provide all of these benefits.

One final point to make (I write this in the hope of not sounding patronising): the university has a responsibility to provide you with relevant instruction, the opportunity to engage with the staff and student body, and with materials to help you develop your understanding of the particular topic being studied. You also have a responsibility for your own learning as university education is founded upon self-directed learning. You will never get the full benefit of a seminar if you haven’t tried to prepare as fully as possible. By reading the cases, by reading a textbook like this and then moving on to a more in-depth book, by reading journal articles, policy reports on so on, you will ensure that you can join in debates and understand what is being discussed in the seminars.

Don’t worry if, having read cases in textbooks, you require greater help. I would suggest that if you find that there is anything you don’t understand when reading – write a question and take it with you to the seminar. Seminar tutors will be very happy to assist you in your learning – that is what we are there for! By contrast, seminar tutors cannot provide the best help when a student attends a seminar and says ‘I don’t understand’ without any further information. It is very difficult for a seminar tutor to provide any meaningful help becausethey have no point of reference about what the student has read and what has caused any misunderstanding or gaps in their knowledge. This is often where the negative perception of seminars is born. The seminar tutor, like a textbook, is a resource – use it.

FEEDBACK

Feedback is something everyone studying at university is looking for. It occupies a not insignificant amount of time for universities, particularly when considering the league table positions and student surveys, and, much more importantly, it is through feedback that you will have an opportunity to discover the extent of and limitations to your understanding and how you can positively improve your personal and professional development, and ability to succeed in assessments. There are, generally, two main forms of feedback that you will receive at university and it is important to understand what each seeks to achieve:

Formative feedback

Formative feedback is provided in the seminar by the tutors and by your colleagues. This is generally achieved through class discussions, and the feedback you will gain from the members of the seminar group will be informal and constructive. By attending seminars you will receive regular feedback, insofar as you actively engage and participate in the discussions, and it will help you identify techniques for presenting your arguments, using the information you have collated from textbooks, journals, case and statutory authority, and will certainly assist you in your development as an academic and a lawyer. Formative feedback is given to non-assessed contributions, and therefore will not be used directly to identify the grade you receive at the end of the module (sometimes referred to as a unit). However, I hope you will understand that this does not detract at all from the important function played by formative feedback and how it will be used in the summative feedback, which you will receive following the submission of assessed coursework/exams.

Summative feedback

Summative feedback is a very useful instrument to identify areas of good practice, clear understanding, evidence of effective research and incorporation of findings into your arguments, and, if done so constructively and taken in a positive frame of mind, it will point to areas of weakness and places where improvements could be made. Remember, even the most accomplished academic will seek critical reviews from colleagues in order to improve submissions to publishers and journal editors. You should not feel defensive about feedback, which identifies areas where you could have improved your arguments or used additional sources and so on. Some universities will use pre-prepared assessment feedback sheets, others will write commentary over your scripts; some academics will prepare a lengthy statement submitted on return of your script, whereas some will offer you an opportunity to receive oral feedback, but however the feedback is provided, it will be timely and detailed and should be used as a learning tool to help you improve. Ultimately, when you are answering a question on employment law, you will be judged primarily on your use of law, the sophistication of the analysis you have provided, clear evidence of research and understanding, and the persuasiveness of the arguments that you have presented – using materials which demonstrate evidence of wider reading.

KEY SOURCES AND LEARNING MATERIALS

There are various sources of information that are available to you when studying in higher education.

Module handbook

One of the first materials that you will be provided with, usually at the first lecture or in an induction programme, is the module manual or handbook. This will provide details of the topics to be included in your employment law module, the timetable, the lecture and seminar programme, an indicative reading list and links to sources in printed and electronic literature, and details of the virtual learning environment used by the institution together with materials that may be accessed from within. I would suggest that you read through this document thoroughly in order to understand the scope of the subject you are studying, the key areas that will be incorporated in your assessment, and other sources of information that will help when you begin employment law.

Reading lists

You will be provided with a reading list of key texts and commentaries that will assist your understanding of the topic. It is vitally important that you adopt the process of reading around a subject and not just relying on your own understanding, the views of your colleagues or those of your tutors and lecturers. The sources mentioned above are, of course, very important, and this is in no way diminishes the significance of what they will offer you in your development, but in order to provide a critical analysis of the law or of policy, and to ensure that you can fully develop your own thoughts on any particular topic, you need to expose yourself to as many views and commentaries as possible. The reading list provided will identify the specific case authorities, statutes and relevant sections, selected journal articles and chapters from textbooks, and it will also identify those that are compulsory, those that are recommended, and those that are part of wider reading. It is unlikely that you will be able to read everything on these lists, but if you work collaboratively with your colleagues in the seminar group, you can share the reading between each other and thereby ensure that all the material is covered and everyone engages in the seminar having been influenced by the materials that have been read.

Libraries/learning centres

The library, although increasingly it is being called a ‘learning centre’ or something similar, is a resource which, by the time you come to study employment law, should be very familiar to you. This is the place where you will find physical and electronic resources and audio and visual equipment so that you can view recordings of television and radio programmes. Obviously it is the place where you can loan books, and it is where experts in the profession (librarians) are located to help you with your legal research. It is also a venue where you will find space for individual private study, silent study, and group activities via bookable study areas. You can also request books and materials not available from your library through document supply resources and inter-library loan schemes.

Textbooks and statute books

You will be provided with details about the compulsory, recommended, and wider reading textbooks that will be used for your particular module. There are many textbooks on employment law available, each with their own focus (being practical, theory-based, cases and materials etc.) or unique selling point, and therefore there is little point in me providing you with a list. The module handbook, the lecture, and your module leader will inform you of this list and this will direct your reading. There are also several producers of statute books and it is worthwhile purchasing (if you can) one of these books and having it with you whenever you are in your class. Employment law is heavily legislated a...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Table of Legislation
• Preface
• Guide to the Companion Website
• 1 An introduction to the study of employment law
• 2 Institutions in employment relations
• 3 Contracts of employment: terms and sources
• 4 Employment status
• 5 Discrimination
• 6 Pay
• 7 Termination of the contract of employment: wrongful dismissal
• 8 Termination of the contract of employment: unfair and constructive dismissal
• 9 Redundancy and the transfer of undertakings
• 10 Industrial action
• Index