| Guide to the book |
|
| Acknowledgements |
|
| Preface |
|
| List of figures |
|
| Table of cases |
|
| Table of statutes and other instruments |
|
| Table of legislation |
|
| Table of EU Treaty Articles and legislation |
|
|
THE ORIGINS OF MODERN EMPLOYMENT LAW |
|
| 1.1 |
The origins of the regulation of employment |
|
|
1.1.1 |
The Statute of Artificers and Apprentices 1562 |
|
|
1.1.2 |
The application of the Statute of Artificers and Apprentices 1562 in
the eighteenth century |
|
|
1.1.3 |
Developments in the common law in the eighteenth century |
|
| 1.2 |
Changes in conditions of employment in the Industrial Revolution |
|
|
1.2.1 |
Reduction in status of traditional work |
|
|
1.2.2 |
Unemployment and casual employment |
|
|
1.2.3 |
Child labour |
|
|
1.2.4 |
Conclusions |
|
| 1.3 |
Legislation and the development of industrial law in the nineteenth century |
|
|
1.3.1 |
Legislation on employment prior to 1832 |
|
|
1.3.2 |
Legislation on employment between the two Reform Acts of 1832 and 1867 |
|
|
1.3.3 |
Legislation on employment from 1867 |
|
|
1.3.4 |
Comment |
|
| 1.4 |
The common law approach to employment in the nineteenth century |
|
|
1.4.1 |
The 'master servant' relationship |
|
|
1.4.2 |
Employment and the basic rules of contract |
|
|
1.4.3 |
The implied duties of master and servant |
|
|
1.4.4 |
The legal relationship of master and servant and third parties |
|
|
1.4.5 |
The liability of the master for injury to his servant |
|
|
1.4.6 |
Comment |
|
| 1.5 |
Advancements and reductions in modern employment rights |
|
|
1.5.1 |
Advances in employment rights and protections |
|
|
1.5.2 |
Reductions of employee rights and protections |
|
| Further reading |
|
|
THE EFFECTS OF EU MEMBERSHIP ON UK EMPLOYMENT LAW |
|
| 2.1 |
UK membership of the European Union |
|
|
2.1.1 |
Introduction |
|
|
2.1.2 |
The basis of UK membership |
|
| 2.2 |
The supranational legal order of the EU |
|
|
2.2.1 |
EU legal instruments |
|
|
2.2.2 |
Supremacy |
|
|
2.2.3 |
Direct effect, indirect effect and state liability |
|
| 2.3 |
The importance of EU membership to UK employment law |
|
|
2.3.1 |
UK implementation of EU law |
|
|
2.3.2 |
The development of EU labour law |
|
|
2.3.3 |
The effects of EU labour law |
|
| Further reading |
|
|
INSTITUTIONS AND PROCEDURES |
|
| 3.1 |
Courts and tribunals hearing employment disputes |
|
|
3.1.1 |
Employment tribunals |
|
|
3.1.2 |
County Court and High Court |
|
|
3.1.3 |
The Employment Appeal Tribunal |
|
|
3.1.4 |
The Court of Appeal (Civil Division) |
|
|
3.1.5 |
The Supreme Court |
|
|
3.1.6 |
The Court of Justice of the European Union |
|
|
3.1.7 |
Other significant institutions in employment law |
|
| 3.2 |
Employment tribunal procedure |
|
|
3.2.1 |
Time limits |
|
|
3.2.2 |
Originating procedure (bringing a claim) |
|
|
3.2.3 |
Conciliation, settlements and compromise arrangements |
|
|
3.2.4 |
Case management |
|
|
3.2.5 |
Pre-hearing review |
|
|
3.2.6 |
The procedure at the hearing |
|
|
3.2.7 |
Appeals |
|
| Further reading |
|
|
EMPLOYMENT STATUS |
|
| 4.1 |
Introduction |
|
| 4.2 |
Distinguishing between employment and self-employment |
|
|
4.2.1 |
The employment relationship |
|
|
4.2.2 |
The purpose of distinguishing between employment and self-employment |
|
| 4.3 |
Tests of employment status |
|
|
4.3.1 |
Introduction |
|
|
4.3.2 |
The control test |
|
|
4.3.3 |
The integration or organisation test |
|
|
4.3.4 |
The economic reality or multiple test |
|
|
4.3.5 |
The mutuality of obligations test |
|
| 4.4 |
Non-standard categories of work |
|
| Sample essay question |
|
| Further reading |
|
|
THE CONTRACT OF EMPLOYMENT |
|
| 5.1 |
Formation of the employment contract |
|
|
5.1.1 |
The form of the contract of employment |
|
|
5.1.2 |
The requirement of writing |
|
|
5.1.3 |
Formalities in the contract |
|
|
5.1.4 |
Minority and the contract of employment |
|
|
5.1.5 |
Illegality and the contract of employment |
|
| 5.2 |
The statutory statement |
|
|
5.2.1 |
The legal status of the statement |
|
|
5.2.2 |
Enforcement of the statement |
|
| 5.3 |
The incorporation of the express terms |
|
|
5.3.1 |
The range and character of express terms |
|
|
5.3.2 |
The significance of the express terms |
|
|
5.3.3 |
Interpreting the express terms |
|
|
5.3.4 |
The advantages and disadvantages of express terms |
|
| 5.4 |
Collective agreements |
|
|
5.4.1 |
The nature of collective agreements |
|
|
5.4.2 |
Express incorporation of collective agreements |
|
|
5.4.3 |
Implied incorporation of collective agreements |
|
|
5.4.4 |
The effect of collective agreements on non-union members |
|
|
5.4.5 |
No strike clauses |
|
|
5.4.6 |
Changing or ending collective agreements |
|
| 5.5 |
Works rules |
|
|
5.5.1 |
The nature and effect of works rules |
|
|
5.5.2 |
The significance of the job description |
|
| 5.6 |
Variati |
on of contractual terms |
|
|
5.6.1 |
Bilateral variations |
|
|
5.6.2 |
Unilateral variations |
|
|
5.6.3 |
Implied variations |
|
| Sample essay question |
|
| Further reading |
|
|
GARDEN LEAVE AND RESTRAINT OF TRADE |
|
| 6.1 |
Garden leave clauses |
|
| 6.2 |
Post termination restraint of trade clauses |
|
|
6.2.1 |
The definition and character of restraint of trade clauses |
|
|
6.2.2 |
Interests that can be protected by the employer |
|
|
6.2.3 |
The possible scope of post termination restraints |
|
|
6.2.4 |
Interpreting post termination restraints |
|
|
6.2.5 |
Enforcement and remedies |
|
| Sample essay question |
|
| Further reading |
|
|
IMPLIED TERMS |
|
| 7.1 |
The process of implying terms |
|
|
7.1.1 |
The nature of implied terms |
|
|
7.1.2 |
The process of implying terms into contracts |
|
| 7.2 |
The implied duties of employers |
|
|
7.2.1 |
The payment of wages |
|
|
7.2.2 |
The provision of work |
|
|
7.2.3 |
The care of the employee |
|
|
7.2.4 |
The duty to indemnify |
|
|
7.2.5 |
The duty of mutual trust and respect |
|
|
7.2.6 |
The duty of confidentiality |
|
|
7.2.7 |
The duty to deal with grievances promptly |
|
|
7.2.8 |
The giving of references |
|
| 7.3 |
The implied duties of employees |
|
|
7.3.1 |
The duty to obey lawful and reasonable instructions |
|
|
7.3.2 |
The duty to exercise reasonable care and skill |
|
|
7.3.3 |
The duty to adapt |
|
|
7.3.4 |
The duty of faithful service |
|
| Sample essay question |
|
| Further reading |
|
|
STATUTORY EMPLOYMENT PROTECTIONS |
|
| 8.1 |
Wages |
|
|
8.1.1 |
The meaning of wages |
|
|
8.1.2 |
Deductions from pay |
|
|
8.1.3 |
The National Minimum Wage |
|
| 8.2 |
Guarantee payments |
|
| 8.3 |
Sickness |
|
|
8.3.1 |
Sick leave |
|
|
8.3.2 |
Medical suspension |
|
|
8.3.3 |
Pay during sick leave |
|
| 8.4 |
Maternity |
|
|
8.4.1 |
Time off for ante-natal care |
|
|
8.4.2 |
Suspension on maternity grounds |
|
|
8.4.3 |
Maternity leave |
|
|
8.4.4 |
Payment during maternity |
|
|
8.4.5 |
Discrimination and dismissal because of pregnancy |
|
| 8.5 |
Other entitlement to leave or time off |
|
|
8.5.1 |
Parental leave |
|
|
8.5.2 |
Paternity leave |
|
|
8.5.3 |
Adoption leave |
|
|
8.5.4 |
Time off for dependant care |
|
|
8.5.5 |
Time off for public duties |
|
| Sample essay question |
|
| Further reading |
|
|
PROTECTION FROM DISCRIMINATION: INTRODUCTION
(THE EQUALITY ACT 2010) |
|
| 9.1 |
The origins of UK discrimination law |
|
| 9.2 |
The Equality Act 2010 and the protected characteristics |
|
| 9.3 |
The Equality Act 2010 and the areas of prohibited conduct |
|
|
9.3.1 |
Direct discrimination |
|
|
9.3.2 |
Indirect discrimination |
|
|
9.3.3 |
Harassment |
|
|
9.3.4 |
Victimisation |
|
| 9.4 |
Occupational requirement |
|
| 9.5 |
Discrimination in employment |
260 |
| Further reading |
|
| 10 |
PROTECTION FROM DISCRIMINATION (1) EQUAL PAY |
|
| 10.1 |
The origins of equal pay |
|
| 10.2 |
The Equality Act 2010 |
|
|
10.2.1 |
The equality clause |
|
|
10.2.2 |
The comparator |
|
|
10.2.3 |
Like work |
|
|
10.2.4 |
Work rated equivalent |
|
|
10.2.5 |
Work of equal value |
|
|
10.2.6 |
Justifications for unequal pay |
|
|
10.2.7 |
Making equal pay claims |
|
|
10.2.8 |
Remedies |
|
| 10.3 |
Article 157 TFEU |
|
|
10.3.1 |
The basic protection |
|
|
10.3.2 |
The definition of pay |
|
|
10.3.3 |
Indirect discrimination and objective justification |
|
| Sample essay question |
|
| Further reading |
|
| 11 |
PROTECTION FROM DISCRIMINATION
(2) SEX DISCRIMINATION |
|
| 11.1 |
The origins and aims of sex discrimination law |
|
| 11.2 |
The different types of sex discrimination |
|
|
11.2.1 |
Direct discrimination |
|
|
11.2.2 |
Indirect discrimination |
|
|
11.2.3 |
Harassment |
|
|
11.2.4 |
Victimisation |
|
| 11.3 |
The situations in which discrimination is prohibited in employment |
|
|
11.3.1 |
Recruitment and selection of staff |
|
|
11.3.2 |
During employment |
|
|
11.3.3 |
On termination of employment |
|
| 11.4 |
Lawful justifications for sex discrimination |
|
| 11.5 |
Discrimination on marital status |
|
| Sample essay question |
|
| Further reading |
|
| 12 |
PROTECTION FROM DISCRIMINATION (3) RACIAL
DISCRIMINATION |
|
| 12.1 |
The origins and aims of race discrimination law |
|
| 12.2 |
The different types of racial discrimination |
|
|
12.2.1 |
Direct discrimination |
|
|
12.2.2 |
Indirect discrimination |
|
|
12.2.3 |
Harassment |
|
|
12.2.4 |
Victimisation |
|
| 12.3 |
The situations in which racial discrimination is prohibited in employment |
|
|
12.3.1 |
Recruitment and selection of staff |
|
|
12.3.2 |
During employment |
|
|
12.3.3 |
On termination of employment |
|
| 12.4 |
Lawful justifications for racial discrimination |
|
| Sample essay question |
|
| Further reading |
|
| 13 |
PROTECTION FROM DISCRIMINATION (4) DISABILITY
DISCRIMINATION |
|
| 13.1 |
The origins of disability discrimination law |
|
| 13.2 |
The Equality Act 2010 and the definition of disability |
|
|
13.2.1 |
Physical or mental impairment |
|
|
13.2.2 |
A substantial or long term effect |
|
|
13.2.3 |
Normal day-to-day activities |
|
| 13.3 |
The Eq |
uality Act and the different types of discrimination |
|
|
13.3.1 |
Discrimination arising from disability |
|
|
13.3.2 |
Direct discrimination |
|
|
13.3.3 |
Indirect discrimination |
|
|
13.3.4 |
Harassment |
|
|
13.3.5 |
Victimisation |
|
|
13.3.6 |
Discrimination in employment |
|
| 13.4 |
The duty to make reasonable adjustments |
|
| Sample essay question |
|
| Further reading |
|
| 14 |
PROTECTION FROM DISCRIMINATION (5) RECENT
DEVELOPMENTS IN DISCRIMINATION LAW |
|
| 14.1 |
The background to the wider development of discrimination law |
|
| 14.2 |
Sexual orientation |
|
| 14.3 |
Gender reassignment |
|
| 14.4 |
Religion and belief |
|
| 14.5 |
Age |
|
| 14.6 |
Part-time workers |
|
| 14.7 |
Fixed-term workers |
|
| 14.8 |
Agency workers |
|
| Sample essay question |
|
| Further reading |
|
| 15 |
PROTECTION FROM DISCRIMINATION (6) PURSUING
DISCRIMINATION CLAIMS |
|
| 15.1 |
Procedure for claiming |
|
| 15.2 |
Remedies |
|
| Further reading |
|
| 16 |
HEALTH AND SAFETY LAW |
|
| 16.1 |
Introduction: the significance of health and safety at work |
|
| 16.2 |
Common law health and safety at work protections |
|
|
16.2.1 |
The origins of liability and the non-delegable duty of care |
|
|
16.2.2 |
The duty to provide safe working colleagues |
|
|
16.2.3 |
The duty to provide safe plant and equipment |
|
|
16.2.4 |
The duty to provide a safe system of work |
|
|
16.2.5 |
The duty to provide a safe place of work |
|
|
16.2.6 |
The character of the duty |
|
|
16.2.7 |
Defences |
|
| 16.3 |
Developments in the duty of care |
|
|
16.3.1 |
Stress at work and psychiatric injury |
|
|
16.3.2 |
Bullying and the Protection from Harassment Act 1997 |
|
| 16.4 |
Statutory and EU health and safety protections |
|
|
16.4.1 |
The Health and Safety at Work Act 1974 |
|
|
16.4.2 |
The 'six pack' of regulations |
|
|
16.4.3 |
The Working Time regulations |
|
| Sample essay question |
|
| Further reading |
|
| 17 |
GRIEVANCES AND DISCIPLINE |
|
| 17.1 |
Grievance procedure |
|
|
17.1.1 |
Causes of grievance |
|
|
17.1.2 |
Formal procedure for hearing grievances |
|
|
17.1.3 |
The right to be accompanied |
|
|
17.1.4 |
Breaches of procedure |
|
| 17.2 |
Disciplinary procedure |
|
|
17.2.1 |
The ACAS Code of Practice |
|
|
17.2.2 |
Disciplinary measures |
|
|
17.2.3 |
Disciplinary hearings |
|
|
17.2.4 |
Disciplinary warnings |
|
|
17.2.5 |
The right to be accompanied |
|
|
17.2.6 |
Appeals |
|
|
17.2.7 |
Breaches of procedure |
|
| Sample essay question |
|
| Further reading |
|
| 18 |
TUPE TRANSFERS |
|
| 18.1 |
The origins and aims of law on transfer of undertakings |
|
| 18.2 |
To whom the regulations apply |
|
| 18.3 |
The nature of a transfer for TUPE purposes |
|
| 18.4 |
The effect of TUPE transfers |
|
| 18.5 |
Dismissals on transfer |
|
| 18.6 |
Consultation |
|
| Sample essay question |
|
| Further reading |
|
| 19 |
TERMINATION OF EMPLOYMENT (1) CONTINUITY,
NOTICE AND DISMISSAL |
|
| 19.1 |
Continuity of employment |
|
| 19.2 |
Notice and statutory notice periods |
|
| 19.3 |
Dismissal |
|
|
19.3.1 |
The statutory definition of dismissal |
|
|
19.3.2 |
Summary dismissal |
|
|
19.3.3 |
Failure to renew a fixed-term or limited-term contract |
|
|
19.3.4 |
Constructive dismissal |
|
| Sample essay question |
|
| Further reading |
|
| 20 |
TERMINATION OF EMPLOYMENT (2) TERMINATION
OTHER THAN BY DISMISSAL |
|
| 20.1 |
Frustration of the contract |
|
| 20.2 |
Death of the employer |
|
| 20.3 |
Resignation |
|
| 20.4 |
Termination by mutual agreement |
|
| Sample essay question |
|
| Further reading |
|
| 21 |
TERMINATION OF EMPLOYMENT (3) WRONGFUL DISMISSAL |
|
| 21.1 |
Introduction |
|
| 21.2 |
The nature of wrongful dismissal |
|
| 21.3 |
Bringing an action for wrongful dismissal |
|
| 21.4 |
Remedies for wrongful dismissal |
|
| Sample essay question |
|
| Further reading |
|
| 22 |
TERMINATION OF EMPLOYMENT (4) UNFAIR DISMISSAL |
|
| 22.1 |
The origins, aims and character of unfair dismissal law |
|
| 22.2 |
Eligibility |
|
| 22.3 |
Dismissals classed as automatically unfair |
|
| 22.4 |
Dismissals classed as potentially fair |
|
|
22.4.1 |
Capability and qualifications |
|
|
22.4.2 |
Misconduct |
|
|
22.4.3 |
Genuine redundancy |
|
|
22.4.4 |
Dismissal because of a statutory restriction |
|
|
22.4.5 |
Other substantial reason |
|
| 22.5 |
Determining whether the dismissal is fair |
|
|
22.5.1 |
The reasonable range of responses test |
|
|
22.5.2 |
Procedural fairness and the ACAS Code of Practice |
|
| 22.6 |
Pursuing a claim for unfair dismissal |
|
| 22.7 |
Remedies |
|
| Sample essay question |
|
| Further reading |
|
| 23 |
TERMINATION OF EMPLOYMENT (5) REDUNDANCY |
|
| 23.1 |
The origins and aims of redundancy law |
|
| 23.2 |
Eligibility for redundancy |
|
| 23.3 |
Dismissals for reasons of redundancy |
|
| 23.4 |
Redundancy procedures |
|
| 23.5 |
Calculating redundancy payments |
|
| 23.6 |
Lay-offs and short-time working |
|
| Sample essay question |
|
| Further reading |
|
| 24 |
EMPLOYMENT RIGHTS RELATED TO TRADE UNION
MEMBERSHIP AND NON-MEMBERSHIP |
|
| 24.1 |
Introduction: the origins of modern trade union law |
|
| 24.2 |
Trade union membership and non-membership |
|
| 24.3 |
Trade union recognition |
|
| 24.4 |
Trade union related time off |
|
|
24.4.1 |
Time off for trade union duties |
|
|
24.4.2 |
Time off for trade union activities |
|
| 24.5 |
Collective bargaining |
|
| 24.6 |
Statutory protection during trade disputes |
|
|
24.6.1 |
Tortious liability in trade disputes |
|
|
24.6.2 |
Immunity from legal action |
|
|
24.6.3 |
Loss of immunity |
|
| 24.7 |
Discipline short of dismissal |
|
| 24.8 |
Dismissal |
|
|
24.8.1 |
Trade Union related dismissal |
|
|
24.8.2 |
Dismissal for taking part in industrial action |
|
|
24.8.3 |
Dismissal because of industrial pressure |
|
| Sample essay question |
|
| Further reading |
|
| Appendix 1 |
|
| Appendix 2 |
|
| Glossary |
|
| Index |
|
