Employment Law

Description

Offering comprehensive coverage of all the key aspects of individual and collective employment law in a clear and accessible way, Employment Law is the ideal text for the first-time student of employment law. Packed with a wealth of case law and legislation, this book will enable you to fully understand the intricacies of this fast-changing subject with ease. With features such as chapter summaries and further reading suggestions, Employment Law is well suited to support you in your studies. Cover Contents Preface Guided tour Abbreviations Table of cases Table of statutes Table of statutory instruments Table of European legislation Publisher’s acknowledgements 1 The study of employment law 1.1 Introduction 1.2 Primary and secondary legislation 1.3 The EU Treaties and legislation 1.4 The courts 1.4.1 Employment tribunals and the EAT 1.4.2 Case reports 1.5 Advisory, Conciliation and Arbitration Service 1.6 Central Arbitration Committee 1.7 Certification Officer 1.8 Information Commissioner 1.9 Equality and Human Rights Commission (EHRC) 1.10 Other useful websites Chapter summary Further reading 2 The employment relationship 2.1 Introduction 2.2 Parties to the contract – employers 2.2.1 Employers’ associations 2.2.2 Identifying the employer 2.2.3 Employers as employees 2.2.4 Associated, superior and principal employers 2.3 Parties to the contract – employees 2.3.1 Dependent labour 2.3.2 The distinction between the employed and the self-employed 2.4 Identifying the employee 2.4.1 The control test 2.4.2 The integration test 2.4.3 The economic reality test 2.4.4 The multiple factor test 2.4.5 Mutuality of obligation 2.5 Question of fact or law 2.6 The intentions of the parties 2.7 Employee shareholders 2.8 Continuity of employment 2.8.1 Continuity and sex discrimination 2.8.2 Continuity and the start date 2.8.3 Continuity and absences from work 2.8.4 Continuity and industrial disputes 2.8.5 Continuity and change of employer 2.9 Specific types of employment relationship 2.9.1 Agency staff 2.9.1.1 The Temporary Agency Work Directive 2008/104/EC 2.9.1.2 The Agency Workers Regulations 2010 2.9.1.3 Agency/worker relationship 2.9.1.4 Employment agencies and businesses 2.9.1.5 Gangmasters 2.9.2 Fixed-term contracts 2.9.3 Part-time contracts 2.9.3.1 Discrimination against part-time workers 2.9.3.2 The Framework Agreement on part-time work 2.9.3.3 The Part-time Workers Regulations 2.9.3.4 Remedies 2.9.4 Apprentices Chapter summary Further reading 3 The contract of employment 3.1 Express terms 3.2 The statutory statement 3.2.1 Names and addresses of employer and employee 3.2.2 Date when employment began 3.2.3 Date on which continuous employment began 3.2.4 Remuneration 3.2.5 Hours of work 3.2.6 Entitlement to holidays and holiday pay 3.2.7 Sickness, injury and pensions 3.2.8 Length of notice 3.2.9 Title of job or job description 3.2.10 Temporary contracts 3.2.11 Place of work 3.2.12 Collective agreements 3.2.13 Periods working outside the United Kingdom 3.2.14 General provisions 3.2.15 Disciplinary and grievance procedures 3.3 Implied terms 3.3.1 Terms implied by statute 3.3.2 Terms implied in fact 3.3.3 Terms implied by law 3.4 Duties of the employer 3.4.1 Duty of mutual trust and confidence 3.4.2 Duty to provide work and pay 3.4.3 Duty of care 3.5 Duties of employees 3.5.1 Duty of obedience and co-operation 3.5.2 Duty of fidelity 3.5.2.1 Not competing 3.5.2.2 Restrictive covenants 3.5.2.3 Confidential information 3.5.2.4 Public Interest Disclosure Act 1998 3.6 Other sources of terms 3.6.1 Custom and practice 3.6.2 Collective and workforce agreements 3.7 Variations in terms Chapter summary Further reading 4 Termination of employment 4.1 Introduction 4.2 Termination of the contract not amounting to dismissal 4.2.1 Frustration 4.2.2 Death of the employer 4.2.3 Voluntary resignation 4.2.4 Termination by agreement 4.3 Termination of the contract by dismissal 4.3.1 Meaning of dismissal 4.3.2 Wrongful dismissal 4.3.3 Notice 4.3.4 Summary dismissal 4.3.5 Remedies for wrongful dismissal 4.4 Unfair dismissal 4.4.1 Eligibility 4.4.1.1 Only employees qualify 4.4.1.2 Illegality 4.4.1.3 Continuous employment 4.4.2 The dismissal 4.4.2.1 Whether a dismissal has taken place 4.4.2.2 Limited-term contracts 4.4.2.3 Constructive dismissal 4.4.2.4 The effective date of termination of employment 4.4.3 The reasons for dismissal 4.4.3.1 Statement of reasons for dismissal 4.4.3.2 Automatically unfair reasons 4.4.3.3 Fair or unfair reasons for dismissal 4.4.3.4 Capability or qualifications 4.4.3.5 Conduct 4.4.3.6 Redundancy 4.4.3.7 Contravention of an enactment 4.4.3.8 Some other substantial reason 4.4.3.9 Reasonableness 4.4.4 Procedural fairness (1): ACAS Code of Practice 4.4.5 Procedural fairness (2): the right to be accompanied 4.4.6 Claiming unfair dismissal 4.4.7 Pre-termination negotiations and settlement agreements, conciliation and arbitration 4.4.8 Remedies 4.4.8.1 Interim relief 4.4.8.2 Reinstatement or re-engagement 4.4.8.3 Compensation 4.5 Redundancy payments 4.5.1 Qualifications and exclusions 4.5.2 Lay-offs and short-time 4.5.3 Time off 4.5.4 Level of payments Chapter summary Further reading 5 Equality: prohibited conduct and equality of terms 5.1 Introduction 5.2 Does discrimination still take place? 5.3 European Union law 5.3.1 The Equal Opportunities and Equal Treatment Directive 5.3.2 The Directive for Equal Treatment in Employment and Occupation 5.3.3 The Race Directive 5.4 The Equality Act 2010 5.4.1 The protected characteristics 5.4.2 Prohibited conduct 5.4.2.1 Direct discrimination 5.4.2.2 Indirect discrimination 5.4.2.3 Harassment 5.4.2.4 Victimisation 5.4.3 Asylum and immigration 5.4.4 Discrimination in employment 5.4.5 Burden of proof 5.4.6 Liability of employers and employees 5.4.7 Relationships that have come to an end 5.4.8 Aiding contraventions 5.4.9 Lawful discrimination 5.4.9.1 Occupational requirements 5.4.9.2 Positive action 5.4.9.3 The general duty to promote equality 5.5 Remedies 5.5.1 Contracts 5.6 Equal pay 5.6.1 The comparator 5.6.2 Like work 5.6.3 Work rated as equivalent 5.6.4 Work of equal value 5.6.5 Defence of material factor 5.6.6 Enforcing equal pay Chapter summary Further reading 6 Equality: the protected characteristics 6.1 Introduction 6.2 Age 6.2.1 The ageing population 6.2.2 The Equality Act 2010 6.2.2.1 Benefits based on length of service 6.2.2.2 National minimum wage 6.2.2.3 Redundancy payments 6.2.2.4 Retirement 6.3 Disability 6.3.1 The Equality Act 2010 6.3.1.1 Long-term impairment 6.3.1.2 Day-to-day activities 6.3.1.3 Substantial adverse effect 6.3.1.4 Long term 6.3.2 Discrimination arising from disability 6.3.3 The duty to make reasonable adjustments 6.4 Gender reassignment 6.5 Marriage or civil partnership 6.6 Pregnancy and maternity 6.6.1 The Equality Act 2010 6.7 Race 6.7.1 The Equality Act 2010 6.7.2 Segregation 6.8 Religion or belief 6.8.1 The Equality Act 2010 6.8.2 Occupational requirements relating to organised religion and belief 6.9 Sex 6.10 Sexual orientation Chapter summary Further reading 7 Time and pay 7.1 Working time 7.2 Young Workers’ Directive 7.3 Working Time Directive 7.4 Working Time Regulations 7.4.1 Scope and definition 7.4.2 Exclusions 7.4.3 The 48-hour week 7.4.4 Night work 7.4.4.1 Special hazards 7.4.4.2 Health care 7.4.5 Time off 7.4.6 Daily rest periods and rest breaks 7.4.7 Weekly rest periods 7.4.8 Annual leave 7.4.9 Special cases 7.4.10 Relevant agreements 7.4.11 Enforcement 7.4.12 Protection from detriment 7.5 Statutory right to time off work 7.5.1 Time off for public duties 7.5.2 Time off to look for work or arrange training 7.5.3 Time off for antenatal care 7.5.4 Time off for dependants 7.5.4.1 Situations that qualify 7.5.4.2 Notice requirements 7.5.4.3 Protection from detriment and dismissal 7.5.5 Time off for pension scheme trustees 7.5.6 Time off for employee representatives 7.5.7 Time off for a young person for study or training 7.5.8 Time off for trade union duties, activities and union learning representatives 7.5.8.1 Taking part in trade union activities 7.5.8.2 Union learning representatives 7.6 Protection of wages 7.6.1 Unauthorised deductions 7.6.2 Normal working hours and a week’s pay 7.6.3 Guarantee payments 7.6.4 Suspension from work on medical grounds 7.7 National minimum wage 7.7.1 Who qualifies for the national minimum wage 7.7.2 Calculating the hourly rate 7.7.2.1 Time work 7.7.2.2 Salaried hours work 7.7.2.3 Output work 7.7.2.4 Unmeasured work 7.7.3 Record keeping 7.7.4 Enforcement 7.7.5 Right not to suffer detriment Chapter summary Further reading 8 Parental and maternity rights 8.1 The Pregnant Workers Directive 8.1.1 Definition 8.1.2 Risk assessment 8.1.3 Night work 8.1.4 Maternity leave 8.1.5 Protection against dismissal 8.1.6 Employment rights during maternity leave 8.2 The Parental Leave Directive 8.2.1 Scope 8.2.2 Force majeure 8.3 Maternity leave in the United Kingdom 8.4 Maternity and Parental Leave etc. Regulations 1999 8.4.1 Statutory maternity leave 8.4.2 Compulsory maternity leave 8.5 Employment rights before and during maternity leave 8.5.1 Time off for antenatal care 8.5.2 Suspension from work on maternity grounds 8.5.3 The contract of employment during maternity leave 8.5.3.1 Work during the maternity leave period 8.5.3.2 Employment rights 8.6 Protection from detriment 8.7 Protection from dismissal 8.7.1 Redundancy 8.7.2 Unfair dismissal 8.8 The right to return to work 8.9 Flexible working 8.10 Parental leave 8.10.1 Entitlement 8.10.2 Meaning of parental responsibility 8.10.3 Leave entitlement 8.10.4 When there is entitlement to parental leave 8.10.5 Procedural rules 8.10.6 Limitations on parental leave 8.10.7 Complaint to an employment tribunal 8.10.8 Employee rights during parental leave 8.10.9 The right to return to work 8.10.10 Protection from detriment and dismissal 8.10.11 Additional provisions 8.11 Paternity leave 8.12 Adoption leave Chapter summary Further reading 9 Business restructuring 9.1 Introduction 9.2 Consultation and information – the international model 9.2.1 European Works Councils 9.2.1.1 Transnational Information and Consultation of Employees Regulations 1999 and 2010 9.2.2 European Company Statute 9.2.2.1 The European Public-Liability Company (Employee Involvement)(Great Britain) Regulations 2009 9.3 Information and consultation – the national model 9.3.1 The Information and Consultation Directive 9.3.2 The Information and Consultation of Employees Regulations 9.3.2.1 Standard information and consultation provisions 9.3.2.2 Confidential information 9.3.2.3 Employee protection 9.4 Collective redundancies 9.4.1 Meaning of establishment 9.4.2 Appropriate representatives 9.4.3 Special circumstances 9.4.4 Failure to comply 9.5 Employer insolvency 9.5.1 Occupational pensions 9.5.2 Controlling directors 9.5.3 Complaints to employment tribunals 9.6 Transfer of undertakings 9.6.1 A relevant transfer 9.6.2 Effect of a relevant transfer 9.6.3 Economic, technical or organisational reason 9.6.4 Insolvency 9.6.5 Information and consultation Chapter summary Further reading 10 Trade unions 10.1 Introduction 10.2 Freedom of association 10.3 Meaning of a trade union 10.3.1 Independence 10.4 Contract of membership 10.5 Rights in relation to trade union membership and discipline 10.5.1 Exclusion and expulsion 10.5.2 Discipline 10.6 Statutory obligations in relation to union elections 10.7 Rights related to the application of funds for political objects 10.8 Breach of rules 10.9 Discrimination against members and officials 10.9.1 Blacklisting 10.9.2 Refusal of employment 10.9.3 Subject to detriment 10.9.4 Inducements relating to membership or activities 10.9.5 Dismissal on grounds related to membership or activities Chapter summary Further reading 11 Collective bargaining and industrial action 11.1 The trade union role 11.2 Collective agreements 11.2.1 Legal enforceability and incorporation 11.3 Recognition 11.3.1 A legal framework 11.3.2 Statutory recognition 11.3.2.1 The request for recognition 11.3.2.2 Parties agree 11.3.2.3 Employer rejects request or negotiations fail 11.3.2.4 Acceptance of application 11.3.2.5 Appropriate bargaining unit 11.3.2.6 Union recognition 11.3.2.7 Consequences of recognition 11.3.2.8 Changes affecting the bargaining unit 11.3.2.9 Detriment and dismissal 11.3.2.10 Training 11.4 Prohibition of union recognition requirements 11.5 Disclosure of information 11.6 Industrial action – trade union immunities 11.7 Common law torts 11.7.1 Inducing a breach of contract 11.7.2 Interference with a contract or with business 11.7.3 Intimidation 11.7.4 Conspiracy 11.7.5 Inducing a breach of a statutory duty 11.7.6 Economic duress 11.8 Protection from tort liabilities 11.9 Exceptions to statutory immunity 11.9.1 Picketing 11.9.2 Action taken because of dismissal for unofficial action 11.9.3 Secondary action 11.9.4 Pressure to impose a union recognition requirement 11.10 Ballots and notices of industrial action 11.10.1 Notifying the employer of the ballot 11.10.2 Appointment of a scrutineer 11.10.3 Entitlement to vote 11.10.4 The voting paper 11.10.5 The ballot 11.10.6 Notice to the employer 11.10.7 Industrial action affecting the supply of goods and services 11.11 Union responsibility for the actions of their members 11.12 Prohibition on use of funds to indemnify unlawful conduct 11.13 Remedies 11.14 Dismissals during industrial action 11.14.1 Unofficial action 11.14.2 Official action 11.14.3 Protected action Chapter summary Further reading Index