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About this book

A revised new edition of a popular and long-established text, updated to include the most relevant developments in employment law today. Reinforced with summaries, exercises and further reading throughout, the text steers the student confidently through the complexities of the subject.

Table of Contents

Introduction

Frontmatter

Chapter 1. Sources and Institutions of Employment Law

Abstract
The law governing the relationship between an employer and employee has become increasingly complex over the last 50 years or so as more and more provisions have been introduced. In addition, employment law comes not only from common law and statute but also from a variety of additional sources such as codes of practice. Over the years, specific institutions have also been introduced into the area, some with an adjudicative function, such as the employment tribunals and Employment Appeal Tribunal (EAT), and some, such as the various Commissions, which have a variety of functions, including overseeing legislation and helping applicants. All of these factors can appear to make the subject somewhat daunting, but together they make it dynamic and one which is constantly changing. This changing nature of the subject is, in reality, very important, as the relationship between an employer and employee does not stand still but evolves over the years. Most employers nowadays do not regard their employees as their property, and the law has changed with changing attitudes, introducing basic employment rights and providing specialised forums in which those rights can be enforced quickly and cheaply. As such, it is necessary to spend some time looking at the different sources and institutions of employment law today.
Deborah J Lockton

The Employment Relationship

Frontmatter

Chapter 2. The Nature of the Relationship

Abstract
It may seem a fairly obvious statement, but the two parties who make up an employment relationship are an employee and an employer. Such a distinction may not be so obvious, however, if the word ‘worker’ is used instead of ‘employee’. Often lay people use the words interchangeably, but for a student of employment law the definition of ‘employee’ is vitally important and must be distinguished from that of a self-employed person or an independent contractor. This is because a variety of legal and economic consequences flow from the distinction. An employee works under a contract of service, whereas an independent contractor works under a contract for services. The major differences between the two types of contract are set out in the following sections.
Deborah J Lockton

Chapter 3. Terms of the Contract

Abstract
The employment relationship is a contractual one and as such must have all the basic elements of an enforceable contract to make it legally binding. In strict contractual terms, the offer is made by the employer and is formally or informally accepted by the employee. This acceptance may be oral or in writing, or conversely the employee may signify his acceptance merely by turning up for work on the appointed day. The consideration within the contract is the promise to pay wages on the part of the employer, and the promise to provide his services on the part of the employee. Once the acceptance has taken place there is a legally binding agreement, and a claim will lie against the party who breaches that agreement, even though it may only just have come into existence. In Taylor v Furness, Withy & Co Ltd (1969) 6 KIR 488, a dock worker was sent by the Dock Labour Board to a new employer. The employer sent him a letter welcoming him and an identity card to sign. When the employee arrived to begin his employment, the employer discovered that he had let his union membership lapse and, under the terms of the Dock Labour Scheme, the employer could not employ him. The employee was therefore sent home. He sued the employer for a week’s wages, the notice he was entitled to under the contract. The employer argued that as the plaintiff had never worked, the contract had not come into existence. It was held that, by signing the identity card, the plaintiff had accepted the employer’s offer, and at that time a legally binding contract came into existence. The plaintiff was thus legally entitled to one week’s notice which he did not receive and the court awarded a week’s pay as damages.
Deborah J Lockton

Chapter 4. Implied Duties in the Contract of Employment

Abstract
It has already been seen that the courts have power to impose terms on the parties where the contract is silent (Section 3.6). The power previously discussed applies on a contract-specific basis, so the courts are implying terms into an individual contract only, not into every contract of employment. By contrast, over the years, the courts have decided that some terms are so important that they should be in every contract, and if the parties have omitted them the courts will insert the relevant provision. These terms have been called ‘implied duties’ to distinguish them from the terms discussed in Chapter 3.
Deborah J Lockton

Constraints on the Employment Relationship

Frontmatter

Chapter 5. Discrimination

Abstract
The common law principle of freedom of contract applies equally to employment contracts, consequently, at common law, the employer can employ, or refuse to employ, anyone for whatever reason he wishes, including reasons based on the sex or race of that person. Such a proposition nowadays, however, would offend most people’s sense of fairness, and over the past few decades the law has sought to intervene to restrict an employer from exercising his common law rights.
Deborah J Lockton

Chapter 6. Equality of Terms

Abstract
The Equality Act 2010 repealed the Equal Pay Act (EPA) 1970. In respect of the equal pay provisions, very little has changed, and thus it is likely that existing case law is applicable under the 2010 provisions. There is a difference in the title of the provisions, though. The Equality Act 2010 refers to equality of terms rather than equal pay. In reality, however, the Equal Pay Act 1970 covered contractual terms, and thus the heading ‘equality of terms’ is more apt.
Deborah J Lockton

Chapter 7. Employment Protection

Abstract
Since 1963, there has been a transformation in employment law. Until then, the rights of employees were contained almost exclusively within an individual contract of employment, with very little statutory intervention other than in the areas of health and safety and the payment of wages. However, 1963 saw the introduction of the Contracts of Employment Act, which introduced minimum notice periods and the right to written particulars, and since then various pieces of legislation have given employment protection rights which are enforced through the tribunals rather than the ordinary courts. Many of these rights, such as the right not to be unfairly dismissed and the right to redundancy payments, are discussed more fully in Chapters 9 and 10. In addition to these major rights, however, there is a variety of disparate individual rights which were created by the Employment Protection Act 1975 and the Employment Relations Act 1999, and which can now be found in the Employment Rights Act (ERA) 1996. It is these rights that the following will discuss.
Deborah J Lockton

Termination of Employment

Frontmatter

Chapter 8. Termination at Common Law

Abstract
Although the most common way the contract of employment will come to an end is by an act of the parties, in some circumstances the law will operate to end the relationship automatically on the happening of an event. Should the contract terminate in this way, there will be no liability on either side. The ways in which the contract will terminate by operation of law are discussed below.
Deborah J Lockton

Chapter 9. Unfair Dismissal

Abstract
The concept of unfair dismissal was introduced into British law by the Industrial Relations Act 1971 as a result of the International Labour Organization’s Recommendation 119, which Britain accepted in 1964. The provisions within the Industrial Relations Act were the only ones to survive when the Labour government came into power in 1974, and were re-enacted in the Trade Union and Labour Relations Act of the same year. The present law relating to unfair dismissal is to be found in the Employment Rights Act (ERA) 1996.
Deborah J Lockton

Chapter 10. Redundancy

Abstract
Compensation for redundancy was one of the first employment protection rights introduced into British law. The first piece of legislation was the Redundancy Payments Act 1965. The law is now contained in the main in the Employment Rights Act (ERA) 1996. The aim of a redundancy payment has never been to cushion a person over a period of unemployment but rather to recognise an employee’s stake in his job. This means that it is irrelevant if the employee has another job to go to once he has been made redundant; he is still entitled to a redundancy payment. In addition, the employee’s stake increases the longer he has worked for the employer, and as such his payment increases with age and years of service. A redundancy payment is calculated in the same way as the basic award in unfair dismissal (see Section 9.9.3(a)).
Deborah J Lockton

Chapter 11. Duties of Ex-Employees

Abstract
In Chapter 4 we saw that the employee owes a duty of faithful service to his employer and part of that duty is not to divulge, or otherwise misuse, confidential information. This duty is either implied into the contract by the common law, or it may be an express term of the contract. This raises the question, however, of the protection afforded to the employer once the relationship has come to an end. The damage that may be caused to an employer’s business by a third party’s learning trade secrets or secret processes is just as serious whether passed on by a present or a past employee. We have already seen that the courts grapple with the problem of distinguishing between what is confidential to the employer and what may be said to be part of the skills acquired by the employee during his period of employment. This problem becomes more acute once the employment relationship has ended, for the new employer will be ‘buying’ the employee for his skill and knowledge. Consequently, the courts are wary of any attempt to restrict the employee after the termination of his contract. Having said that, some restrictions are allowed, and there are two methods which may be invoked. These are discussed below.
Deborah J Lockton

Trade Unions and the Law of Industrial Action

Frontmatter

Chapter 12. Trade Unions

Abstract
The idea of a group of people associating for mutual protection and benefit in relation to employment is a common enough one today but this was not always the case. The Industrial Revolution saw the birth of trade unions as we know them today but that birth was met with hostility from both the legislature and the judges. The Combination Acts 1799–1800 made any agreement with the purpose of improving working conditions an offence and imposed criminal sanctions upon those who called or attended a meeting for that purpose, so essentially undermining the very essence of a union. The major legal obstruction to unions during the early part of the nineteenth century was that, as their main purpose was to improve the working conditions of their members, they were seen to be in restraint of trade and therefore illegal if they performed this function. The Combination Laws Repeal Act 1824 meant that unions were not criminal per se, but after a series of strikes the Combination Act 1825 rendered unions criminal except where their sole purpose was the determination of wages or hours. Major advances were made by the introduction of the Trade Union Act 1871 and the Criminal Law Amendment Act of the same year. The former provided that trade union activity was not to be regarded as in restraint of trade, and gave unions the power to enforce certain contracts and hold property. The latter modified the offences of intimidation, obstruction and molestation in relation to trade union activity, but this was thwarted somewhat by the judiciary’s increased use of the offence of criminal conspiracy in relation to industrial action. The Conspiracy and Protection of Property Act 1875 defined the ambits of lawful industrial action and created immunity from criminal conspiracy where the act was done in furtherance of a trade dispute, and was not criminal if done by one person alone.
Deborah J Lockton

Chapter 13. The Rights of Trade Union Members

Abstract
For many years the legislature adopted a non-interventionist approach in the area of trade union activity and apart from giving trade unions immunity from liability in certain situations to enable them to take industrial action, very little legislation was passed. This meant, however, that while individual members were protected should they take industrial action, very few other rights accrued. The Industrial Relations Act 1971 showed a departure from the previous non-interventionist approach, and although the Act was short-lived, its successor, the Trade Union and Labour Relations Act 1974, introduced strong protection for the union and its members engaging in industrial action, and gave legal protection to the closed shop. The Labour government which introduced that piece of legislation, however, saw it as part of a three-part plan in this field. The second part was the introduction of employment protection rights which were enacted in the Employment Protection Act 1975 and which also, for the first time, gave rights to trade union members vis-à-vis the employer. The final part was to be legislation on industrial democracy, which did not get very far owing to the party losing power.
Deborah J Lockton

Chapter 14. Industrial Action

Abstract
Since the growth of trade unionism after the Industrial Revolution, the strength of the employee has been in his freedom to associate with fellow employees and to negotiate collectively with the employer. This may seem to be a bold statement at first sight, but its basis is the foundation stone of industrial relations. An employer has economic strength when compared to an employee. He has the job, and if the employee does not comply with the employer’s wishes then, unless the law prevents it, the employer can easily replace him. Any protest by the individual employee is unlikely to have much effect. If the employee, however, is one of a large group, all of whom protest against the employer, then the impact will be much greater, and the possibility of such a protest could keep the employer from making unreasonable demands. Thus, simplistically the power of employees to organise balances the economic power of the employer. This power to organise, however, is only half the story. The body of workers must be able to protest in a way which will be effective and which will persuade the employer to see their point of view. Hence, industrial action in one form or another, be it a go-slow, a work-to-rule or ultimately a strike, gives the body of workers bargaining power. It is therefore the power to organise plus the power to take industrial action that is the balance to the employer’s economic power. Good industrial relations policy tries to achieve an equal balance of power. Too much power on the part of the unions will shift the balance in their favour; too little power on the part of the unions will shift the balance the other way and increase the strength of the employer.
Deborah J Lockton
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