Employment Law

A Practical Introduction

Elizabeth Aylott

• Publisher: Kogan Page
• Year: 2022
• ISBN:
  9781398603967
• Edition: 3
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

The updated third edition of Employment Law is a clear and practical guide to understanding the complex, important system that regulates the relationship between employers and employees in the UK. Understanding and applying the law effectively at work is essential for organizations. Employment Law offers a complete overview of the core components that form the interactions between an organization, its employees and the HR function. The third edition includes the latest developments and changes in law and HR perspectives, with new material on the changeability of the law, equal pay and parental leave.Featuring practical tools, checklists, case studies and real-life examples, Employment Law builds legal knowledge in key areas including recruitment, contracts, discrimination, equal pay, health and safety and managing the end of the employment relationship. It is supported by case studies on topics such as early conciliation, implied rights and diversity and inclusion and online resources including person specification templates and appraisal forms and additional references. HR Fundamentals is a series of succinct, practical guides featuring exercises, examples and case studies. They are ideal for students and those in the early stages of their HR careers.

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 law and the influence of European law on the UK;
• the process for changing laws;
• the relevant structure of the Civil Courts and the Employment Tribunal system;
• the role of law in distributing social justice and ensuring fairness;
• the impact of Brexit and the Covid-19 pandemic on law;
• 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

When the Government believes there may be a requirement to change law it will seek the views of key organizations and individuals by consultation. The consultation has a set time-frame, sets out the current law and prepares questions to be answered. The Government also prepares an impact assessment, which looks at the options and the costs of each one. For example, the consultation for pregnancy and maternity discrimination to extend redundancy protection for women and new parents ran from January to April 2019. In this case there had been research into the prevalence of pregnancy and maternity discrimination and evidence to the Women and Equalities Select Committee which supported the need for additional protection. This led the Government to consult. As a result, the Pregnancy and Maternity (Redundancy Protection) Bill 2019–2020 was introduced to the House of Commons in July 2020. It is progressing through Parliament, but is yet to have its second reading. It is not known when this will be sent to the House of Lords, and then on for Royal Assent to become Statute.

A statute is 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 2020 (SI 2020/338) whereby annual changes for the 2020 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 that 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. Case law making precedent includes Vento v Chief Constable of West Yorkshire Police (No. 2) (20 December 2002) which set the banding for injury of feelings in discrimination cases, and R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills (25 September 2009) which resulted in the retirement age being abolished in the UK.

Figure 1.1 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 Equality and Human Rights Commission (EHRC) 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

As a result of the Brexit vote, the UK is no longer a member of the European Union, and the relationship between the European Union and the UK is described in the Withdrawal Agreement. A transition period ended on 1 January 2021, and from 1 February 2021 the UK cannot be involved in EU decision-making. This means that the UK is not subject to any new EU legislation. Article 86 (1) of the Withdrawal Agreement deals with cases that are pending at this time, and states that these pending cases are in the jurisdiction of the European Court of Justice and can be heard. If there are infringements of European Law during the transition, the European Court of Justice has four years to take up infringement proceedings for these breaches of European law.

EU directives have been already incorporated into domestic law. 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.

Sections 2 to 4 of the Withdrawal Agreement cover EU law, and the UK has been working through secondary legislation to make it easy to use. If in doubt, it is wise to check, as some EU legislation has been revoked.

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 (2021a) 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...

Table of contents

• About the author
• Introduction
• Part ONE Fundamentals
• 01 What is employment law?
• 02 The importance of employment law
• 03 Employment law and strategy
• Part TWO In practice
• 04 How it works
• 05 How you do it
• 06 Planning and action
• 07 Measurement
• 08 Conclusions and Government changes to employment law
• References
• Cases and legislation
• Index of case studies
• Index
• HR Fundamental series