Employment Law

A Practical Introduction

Elizabeth Aylott

• Publisher: Kogan Page
• Year: 2018
• ISBN:
  9780749483241
• Edition: 2
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

To many, the world of employment law and seem complex and confusing. But, this important system that regulates the relationship between employers and employees is essential to understand. Employment Law is a clear and practical guide to understanding and applying the law effectively at work in the UK. It offers a complete overview of the fundamentals of employment law, exploring its importance for an organization, its employees and the HR function. Using a combination of practical tools, checklists, case studies and real-life examples, it builds legal knowledge in key areas including recruitment, contracts, discrimination, equal pay, health and safety and managing the end of the employment relationship.This fully revised second edition of Employment Law is updated to include the latest developments and changes in law and HR perspectives. It contains new material on employment statuses, Gender Pay Gap Reporting, Shared Parental Leave, the General Data Protection Regulation (GDPR), and disability discrimination, which is supported by updated case studies and a suite of new online resources. HR Fundamentals is a series of succinct, practical guides for students and those in the early stages of their HR careers. They are endorsed by the Chartered Institute of Personnel and Development (CIPD), the UK professional body for HR and people development, which has over 145,000 members worldwide.

PART ONE

FUNDAMENTALS

01

What is employment law?

INTRODUCTION

Both employers and employees are protected by legislation, but to most people it is complex and confusing. This chapter seeks to introduce employment law, the court system and tribunals in an easy to understand manner. It also will discuss the reason for employment law and the effect of this law on all parties. In this chapter we will explore:

• the sources of domestic and European law (with reference to Brexit);
• the relevant structure of the Civil Courts and the Employment Tribunal system;
• the role of law in distributing social justice and ensuring fairness;
• the effect of regulation on the economy, employees, employers and society;
• the Employment Tribunal process and out-of-court settlements.

Employment law

Employment law can be separated into three main themes:

• health and safety legislation;
• individual employment legislation;
• collective employment legislation.

The health and safety of workers has been ensured with a framework of legislation for many years, but this is not true of collective employment legislation which has been limited, with the UK preferring a voluntary approach. Employment law has moved from being based on common law to relying on statute. The extent of law covering these three main themes is vast and extends far beyond a book on the fundamentals of employment law. We will be focusing on individual employment law and touching on health and safety legislation.

Domestic law

The UK has a common law system. This means that judges have two main legal sources from which to make decisions; statute and common law.

Statute

A bill will pass through parliament, being discussed and amended at different stages in the process until it gains Royal Assent and becomes a statute. It is now primary law, and will be described as an Act of Parliament. Where necessary, statutes will allow for future regulations to be added and these are known as Statutory Instruments (SI). These Statutory Instruments ensure that additional detail or particular changes can be made to the Act without having to put the whole statute through Parliament. For example, the National Minimum Wage Act 1998 has been amended by the National Minimum Wage (Amendment) Regulations 2017 (SI 2017/465) whereby annual changes for the 2017 national minimum wage have been inserted into the regulations.

Case law

Over the years, judges have made decisions on cases that have become a binding precedent, as they have interpreted the law in a particular new way. It is not the actual decision that becomes binding but the reason for the decision which then can be applied to other similar cases: if the facts of the current case significantly resemble those of the precedent then it will be binding. Judges will interpret the facts of the case in light of any relevant case law and apply this to the case to support them in making their decision.

These precedent cases help by providing practical situations to which statute law has been applied. For example the Employment Rights Act 1996 provides information on the right not to be unfairly dismissed and the remedies for unfair dismissal but it is British Homes Stores v Burchell (1980) ICR 303, EAT which provides clarity on how to determine whether an unfair dismissal case has been managed correctly.

Courts higher in the hierarchy have precedent over the lower level courts. This means that decisions made at Supreme Court level take precedent over those made at Employment Appeal Tribunals or Employment Tribunals. Please look at Figure 1.1, but note this is as of January 2018; it is unclear whether there will be a role for the European Court of Justice (ECJ) for UK employment law.

FIGURE 1.1 The Employment Tribunal system

The Employment Tribunal system

Codes of Practice

Codes of Practice have been particularly relevant in the education and support of employers to apply statute. The Advisory, Conciliation and Arbitration Service (Acas) has a duty to provide Codes of Practice ‘as it thinks fit for the purpose of promoting the improvement of industrial relations’ (Trade Union and Labour Relations (Consolidation) Act 1992, s.199), and the Secretary of State also has the power to produce Codes of Practice, in consultation with Acas. The Commission for Equal and Human Rights (CEHR) and the Health and Safety Executive (HSE) can also produce Codes of Practice.

Employers that fail to abide by these Codes of Practice are not liable and therefore judges cannot base their decisions on the fact that these Codes of Practice have not been applied in the workplace. However judges are able to take the failure to adhere to a Code of Practice into account. This means that this factor may support other facts which lead judges to their decisions.

European law

While the UK is part of the European Union, it is subject to European law, with European law having supremacy and therefore superseding any domestic law. This means that domestic law should be consistent with European law (and so makes it easier as EU law is implemented through domestic law, Pyper, 2016). Article 288 of the Treaty on the Functioning of the European Union 2012/C 326/01 explains that the European Union will produce regulations, directives and decisions which may be dealt with differently by the member states. Regulations are to be taken in their entirety and will apply directly to the member states and are the equivalent of European Union Acts of Parliament. A directive can be interpreted into domestic law as it is less specific and most European Union influence on UK employment law has been through directives. Decisions may be provided for a specific member state, company or individual and is binding on them. Decisions are made by institutions such as the European Court of Justice.

For example, the Parental Leave Directive (96/34/EC) was implemented in the UK in 1999, as an amendment to the Employment Rights Act 1996. The rights are incorporated into the Act and the details placed in a Statutory Instrument, the Maternity and Parental Leave Regulations 1999 (SI 1999/3312). The Parental Leave Directive (96/34/EC) has now been repealed by the European Union and replaced by the Parental Leave Directive (2010/18/EC) with the rights remaining in the Employment Rights Act 1996 and the details found in the Statutory Instrument, the Parental Leave (EU Directive) Regulations 2013 (SI 2013/283). Here the UK has been able to apply its own interpretation of parental leave and the 2013 Regulations are as a result of consultation.

In context – social justice and fairness

We need to appreciate social justice and the approach of international bodies to social justice if we are to understand the reasoning behind legislation, rather than just how to apply the law. Social justice is the distribution of advantages and disadvantages within society and is based on equality and equal opportunity. It concerns aspects of citizenship, covering access to healthcare, education, justice and an acceptable standard of living. Within the workplace, social justice also refers to access to rights and fairness. For example, it refers to the right to influence decisions (employee voice), the right to justice (access to appeals) and protection against exploitation (fair distribution of pay and benefits). Social justice to some degree is supported by law.

The International Labour Organization promotes ‘decent work’ for all on an international scale and has agreed the principles of fundamental rights with its member states. These include:

• the right to association and collective bargaining;
• the elimination of child labour and all forced labour;
• the elimination of discrimination.

The International Labour Organization (2017a) describes decent work as involving ‘opportunities for work that is productive and delivers a fair income, security in the workplace and social protection for families, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men.’ This puts social justice on the employment agenda but these principles are only basic rights with little legal foundation. They are accepted through member country ratification and monitored by the International Labour Organization. The European Union has focused its social policy on the regulation of employment (Majone, 1993), establishing a set of minimum health and safety and empl...