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About this book

This textbook is an ambitious and engaging introduction to the more advanced writings on employment law, primarily designed to allow students to ‘get under the skin’ of the topic and begin to build their critical thinking and analysis skills. Each chapter is structured around key questions and debates that provoke deeper thought and, ultimately, a clearer understanding.

The aim of the book is therefore not to present a complete overview of theoretical issues in employment law, but rather to illustrate the current debates which are currently going on among those working in shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

Table of Contents

1. The Idea of Employment

Abstract
In this chapter I consider the most fundamental issue of employment law — what is meant by the word ‘employment’, I look first at what is involved in the process of defining ‘employment’, Is it, for example, a matter of discovering what the word entails, in much the same way that a scientist uncovers facts about an identified physical entity, or is it perhaps better seen as a process of constructing an idea in the most beneficial and logical way? I then turn to the idea that ‘employment’ is best seen as a conceptual tool, the meaning of which is determined by the purposes for which the concept is needed. This leads to an examination of the issue as to whether the question of what is meant by ‘employment’ is a matter of law or fact, and why that is important. I then examine the debate concerning whether employment can be seen as a unified concept, albeit sometimes viewed from different perspectives, or if the different definitions of employment in various parts of the law indicate that it is simply that the same word is used for convenience to cover a variety of closely-related, yet nevertheless different, ideas. Finally, I examine the idea that the concept of ‘employment’ should be abandoned altogether.
Simon Honeyball

2. The Employment Contract and Theory

Abstract
In this chapter I will concentrate on the contractual aspects of employment from a theoretical point of view. In other words, I will be concerned with the nature of employment and whether it is best analysed in its present state in terms of the law of contract. I will leave until the next chapter normative, or prescriptive, issues regarding the extent to which, if employment is contractual, contract provides the best model for employment from the point of view of the parties to the relationship, and particularly if it allows employees to be given the degree of job security that is thought suitable in the modern world of work.
Simon Honeyball

3. The Employment Contract and Practice

Abstract
In the previous chapter I examined some debates concerning theoretical aspects of the employment relationship, but concentrated on the question whether employment can best (most accurately) be described as a contractual relationship. However, it is one question whether, from an analytical point of view, employment is contractual. It is another, quite separate, prescriptive or normative question if that is the most beneficial theoretical foundation employment could have. The latter is the main focus of the present chapter.
Simon Honeyball

4. Discrimination at Work

Abstract
It is clear that the introduction and development of discrimination legislation has been a major feature of employment law (and of course many other areas of law) over the past forty and more years. It has been thrown into sharp relief because the common law previously provided very little protection indeed for employees, or would-be employees, who were discriminated against. And it still fails to do so. For example, discriminatory conduct is, almost by definition, unreasonable, and so it might be thought that this would provide a basis for a contractual remedy. A non-lawyer in particular might feel that a contract of employment would contain, if not an express term to this effect, an implied term that the employer will be deemed to be acting unreasonably if it acts in a discriminatory manner. However, the employment contract does not contain an implied term that the parties will act reasonably towards each other, even though the parties, if asked whether they would consider reasonable behaviour to be part of their relationship, presumably would almost invariably answer that this went without saying. In other words, reasonableness is something that would seem easily to pass the ‘officious bystander’ test for the implication of terms into contracts, but the courts have never adopted this approach with regard to employment contracts. Even if they had, and this were a method of protecting employees against discrimination at common law, it would in any event exclude an ambit where much employment discrimination takes place, namely failure to offer work to someone for a discriminatory reason.
Simon Honeyball

5. Termination of Employment

Abstract
For most people, having employment is one of the most important features of their lives, and probably the most important outside their family. Whilst obtaining a job can be a very disruptive and life-changing event, losing it can be even more so. In this chapter I will consider a number of issues arising out of the termination of employment. I will begin by considering whether it can be justified for legal remedies to be dependent upon the employee having acquired a period of employment with an employer. I will then examine if the concept of dismissal in law is coherent and then consider issues concerning the idea of termination by agreement of the parties. I will conclude by assessing whether or not the law provides adequate protection to employees when they are dismissed, and how far the law of unfair dismissal is really concerned with fairness.
Simon Honeyball

6. Collective Aspects of Employment

Abstract
In this chapter I will consider various Debates about the collective aspects of employment. I have already considered one of these in Chapter 2 when I examined the very difficult issues raised by a contractual analysis of collective bargains between trade unions and employees and the effect upon the contracts of employment between employers and employees. In this chapter I will consider two further areas, namely Debates to do with industrial action and the law on trade unions.
Simon Honeyball

7. Human Rights and Employment

Abstract
It is highly probable that anyone who had not given a great deal of thought to the concept of human rights and how they differ from other rights will nevertheless be aware that the idea has relevance in law as well as morality. They most probably would also be aware that the United Nations Declaration of Human Rights exists, created in the aftermath of the Second World War. They will almost certainly know that the Human Rights Act 1998 gave effect to the European Convention on Human Rights (or the European Convention for the Protection of Human Rights and Fundamental Freedoms) which was adopted by the Council of Europe in 1950, and came into force in 1953. Its role was to protect individuals’ rights against infringement by states.1 They might know that the Equality Act 2006 created the Commission on Equality and Human Rights to underpin its work in the United Kingdom. But what the idea of human rights is, and what its relationship with domestic employment law amounts to, will probably be issues that are much less clear in the mind of the interested observer. It is to this, therefore, that I first turn.
Simon Honeyball

8. The Employment Legal System

Abstract
It is a striking feature of employment law that cases concerning individuals’ work issues will be dealt with by a tribunal rather than a court. And yet disputes about jobs are some of the most serious that can take place in a person’s life. It might be one thing for a legal dispute about the merchantable quality of an iron or a television to be dealt with outside the normal court system, but quite another for, together with family, the most important aspect of life and human relationships to be determined in such a way. This idea underpins each of the Debates in the present chapter. First, I pose the question as to whether the employment tribunal system is in need of reform. Then I examine whether the appeals process in employment cases could be improved.
Simon Honeyball
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