WEEK 1 – THE EMPLOYMENT RELATIONSHIP
SOURCES OF EMPLOYMENT LAW
1. Common law
a. Employment tribunals
Employment tribunals have jurisdiction (through statute) to hear claims arising out of
breaches of most aspects of the employment relationship, for example:
• Unfair Dismissal
• Wrongful Dismissal
• Redundancy Payments
• Discrimination Claims
• Equal Pay Claims; and
• Protection of Wages Claims
Employment Tribunals also have jurisdiction to hear SOME claims by workers, for
example:
• Claims under the protection of wages legislation; and
• Discrimination claims
s230 ERA 1996 - Distinction between an “employee” and “worker”
b. The Employment Appeal Tribunal
Employment Appeal Tribunal (EAT) hears appeals on questions of law from an
employment tribunal
Its decisions are binding on employment tribunals.
An appeal from the EAT lies to the Court of Appeal and from there to the Supreme
Court.
c. Civil Courts
In addition to the appellate function of the civil courts, the High Court and County Court
can hear breach of contract claims e.g. wrongful dismissal
Civil courts can grant injunctive relief e.g. where a restraint of trade clause has been
breached
, 2. Legislation
Industrial Relations Act 1971 introduced the right to complain of ‘unfair’ dismissal
Majority of individual rights were consolidated, first in the Employment Protection
(Consolidation) Act 1978 (EP(C)A 1978) and most recently in the ERA 1996
ERA 1996 amended by the Employment Relations Acts 1999 and 2004 (ERA 1999
and 2004), the Employment Act 2002 (EA 2002) and the Work and Families Act
2006
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A
1992), as amended by the Trade Union Reform and Employment Rights Act 1993
and the ERA 1999, consolidated all statute law containing trade union and group
provisions
Equal Pay Act 1970 (EPA 1970), the Sex Discrimination Act 1975 (SDA 1975), the
Race Relations Act 1976 (RRA 1976) and the Disability Discrimination Act 1995
(DDA 1995) have all been REPEALED AND REPLACED by the provisions of the
Equality Act 2010
3. Codes of practice
A code of practice is not legally binding and is intended to give guidance to employers
on good employment practices.
It may be used in evidence e.g. the ACAS Code of Practice on Discipline and
Grievance is often referred to by tribunals
, 4. European Union law – applicability to Member States
a. Treaty provisions and Regulations
EU treaties and EU Regulations which give clear, precise and unconditional rights to
individuals are generally directly enforced in national courts because they have direct
applicability - Van Gend en Loos v Nederlandse Administratie der Belastingen
(Case 26/62) [1963] ECR 1
Article 157 TFEU - ‘Each Member State shall ensure that the principle of equal pay for
male and female workers for equal work or work of equal value is applied’
b. Directives
A Directive is secondary EU legislation.
It is not directly applicable in a Member State BUT must be implemented by national
legislation.
HOWEVER if a Directive gives clear, precise and unconditional rights to an individual,
and the State fails to implement it at all or to implement it properly within the stipulated
time frame, the individual has a right to rely on the Directive directly against the State
or an emanation of the State.
Directives that have not been properly implemented in a Member State can be directly
enforced, BUT only by employees of the State or of an emanation of the State.
c. Interpretation of national legislation
Employees who cannot rely on direct effect, for example if they work in the private
sector, may seek to enforce rights conferred by EU Directives which have not been
properly implemented by asking their national courts to interpret their national
legislation in the light of the EU Directive (indirect effect)
d. Action against the state
If a State fails to implement a Directive at all (or incorrectly), an employee who is
affected can bring a claim against the State for damages under the principle in
Francovich (Andrea) and Bonifaci (Danila) v Italy (Cases C-6 and 9/90) [1992]
IRLR 84.
e. BREXIT
The European Union (Withdrawal) Act 2018 REPEALED the European
Communities Act 1972 - states that when interpreting retained EU law after Brexit,
UK courts and tribunals will not be bound by any decisions made on or after exit day
but ‘may have regard to’ such decisions ‘so far as it is relevant’
, 5. Human Rights Act 1998
Courts and tribunals in the UK now have to interpret national law in the light of the
rights contained in the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) and where this is not possible, the High Court is
empowered to declare such law incompatible with Convention rights.
6. Recruitment and induction
A job applicant can bring a claim against a potential employer for discrimination
(Equality Act 2010, s 39) in terms of the arrangements made for recruitment, the
terms offered or as a result of a refusal or deliberate failure to offer employment.
a. Immigration, Asylum and Nationality Act 2996 and Immigration Act
2014
On or after 16 May 2014, an employer must undertake required checks before an
individual commences working
An employer is not exempt from carrying out checks on employees acquired as a
result of a transfer under the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (SI 2006/246)
b. Illegality
An employee whose contract is illegal may be prevented from asserting his
contractual and statutory rights
c. Criminal record and other background checks
Any data that employers acquire as a result of job applications, must be processed
fairly in accordance with an employer’s obligations (as a data controller) under the
Data Protection Act (DPA) 2018
Some employers may also be tempted to conduct their own background ‘research’
on applicants via social media BUT such searches should be for specific and good
reason
Under the Equality Act 2010, it is unlawful to ask candidates about protected
characteristics, whether they are married or plan to have children
Questions should only be asked about health or disability if there are necessary
requirements of the job that cannot be met with reasonable adjustments
Age should only be sought on an application form if there are age requirements for
the job
, These matters can be asked about on separate equality monitoring forms
Drug screening can only be undertaken with an individual’s explicit consent, but the
use of drug and alcohol tests should be justified as necessary and proportionate (eg
safety-critical jobs).
The Employment Practices Code draws a distinction between obtaining information
in order to ‘verify’ something and obtaining information in order to ‘vet’ someone.
To ‘vet’ will generally be regarded as a more intrusive act than the ‘verify’, so it
should only be used where there are ‘particular and significant risks involved to the
employer, clients, customers or others and where there is no less intrusive and
reasonably practicable alternative’.
d. Rehabilitation of Offenders Act 1974
Job applicants do not generally have to disclose spent convictions. Some excepted
professions (eg teachers, healthcare practitioners and lawyers) may have to disclose
information about spent convictions, if required.
A spent conviction or a failure to declare one is not a proper ground for dismissing an
employee.
SOURCES OF EMPLOYMENT LAW
1. Common law
a. Employment tribunals
Employment tribunals have jurisdiction (through statute) to hear claims arising out of
breaches of most aspects of the employment relationship, for example:
• Unfair Dismissal
• Wrongful Dismissal
• Redundancy Payments
• Discrimination Claims
• Equal Pay Claims; and
• Protection of Wages Claims
Employment Tribunals also have jurisdiction to hear SOME claims by workers, for
example:
• Claims under the protection of wages legislation; and
• Discrimination claims
s230 ERA 1996 - Distinction between an “employee” and “worker”
b. The Employment Appeal Tribunal
Employment Appeal Tribunal (EAT) hears appeals on questions of law from an
employment tribunal
Its decisions are binding on employment tribunals.
An appeal from the EAT lies to the Court of Appeal and from there to the Supreme
Court.
c. Civil Courts
In addition to the appellate function of the civil courts, the High Court and County Court
can hear breach of contract claims e.g. wrongful dismissal
Civil courts can grant injunctive relief e.g. where a restraint of trade clause has been
breached
, 2. Legislation
Industrial Relations Act 1971 introduced the right to complain of ‘unfair’ dismissal
Majority of individual rights were consolidated, first in the Employment Protection
(Consolidation) Act 1978 (EP(C)A 1978) and most recently in the ERA 1996
ERA 1996 amended by the Employment Relations Acts 1999 and 2004 (ERA 1999
and 2004), the Employment Act 2002 (EA 2002) and the Work and Families Act
2006
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A
1992), as amended by the Trade Union Reform and Employment Rights Act 1993
and the ERA 1999, consolidated all statute law containing trade union and group
provisions
Equal Pay Act 1970 (EPA 1970), the Sex Discrimination Act 1975 (SDA 1975), the
Race Relations Act 1976 (RRA 1976) and the Disability Discrimination Act 1995
(DDA 1995) have all been REPEALED AND REPLACED by the provisions of the
Equality Act 2010
3. Codes of practice
A code of practice is not legally binding and is intended to give guidance to employers
on good employment practices.
It may be used in evidence e.g. the ACAS Code of Practice on Discipline and
Grievance is often referred to by tribunals
, 4. European Union law – applicability to Member States
a. Treaty provisions and Regulations
EU treaties and EU Regulations which give clear, precise and unconditional rights to
individuals are generally directly enforced in national courts because they have direct
applicability - Van Gend en Loos v Nederlandse Administratie der Belastingen
(Case 26/62) [1963] ECR 1
Article 157 TFEU - ‘Each Member State shall ensure that the principle of equal pay for
male and female workers for equal work or work of equal value is applied’
b. Directives
A Directive is secondary EU legislation.
It is not directly applicable in a Member State BUT must be implemented by national
legislation.
HOWEVER if a Directive gives clear, precise and unconditional rights to an individual,
and the State fails to implement it at all or to implement it properly within the stipulated
time frame, the individual has a right to rely on the Directive directly against the State
or an emanation of the State.
Directives that have not been properly implemented in a Member State can be directly
enforced, BUT only by employees of the State or of an emanation of the State.
c. Interpretation of national legislation
Employees who cannot rely on direct effect, for example if they work in the private
sector, may seek to enforce rights conferred by EU Directives which have not been
properly implemented by asking their national courts to interpret their national
legislation in the light of the EU Directive (indirect effect)
d. Action against the state
If a State fails to implement a Directive at all (or incorrectly), an employee who is
affected can bring a claim against the State for damages under the principle in
Francovich (Andrea) and Bonifaci (Danila) v Italy (Cases C-6 and 9/90) [1992]
IRLR 84.
e. BREXIT
The European Union (Withdrawal) Act 2018 REPEALED the European
Communities Act 1972 - states that when interpreting retained EU law after Brexit,
UK courts and tribunals will not be bound by any decisions made on or after exit day
but ‘may have regard to’ such decisions ‘so far as it is relevant’
, 5. Human Rights Act 1998
Courts and tribunals in the UK now have to interpret national law in the light of the
rights contained in the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) and where this is not possible, the High Court is
empowered to declare such law incompatible with Convention rights.
6. Recruitment and induction
A job applicant can bring a claim against a potential employer for discrimination
(Equality Act 2010, s 39) in terms of the arrangements made for recruitment, the
terms offered or as a result of a refusal or deliberate failure to offer employment.
a. Immigration, Asylum and Nationality Act 2996 and Immigration Act
2014
On or after 16 May 2014, an employer must undertake required checks before an
individual commences working
An employer is not exempt from carrying out checks on employees acquired as a
result of a transfer under the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (SI 2006/246)
b. Illegality
An employee whose contract is illegal may be prevented from asserting his
contractual and statutory rights
c. Criminal record and other background checks
Any data that employers acquire as a result of job applications, must be processed
fairly in accordance with an employer’s obligations (as a data controller) under the
Data Protection Act (DPA) 2018
Some employers may also be tempted to conduct their own background ‘research’
on applicants via social media BUT such searches should be for specific and good
reason
Under the Equality Act 2010, it is unlawful to ask candidates about protected
characteristics, whether they are married or plan to have children
Questions should only be asked about health or disability if there are necessary
requirements of the job that cannot be met with reasonable adjustments
Age should only be sought on an application form if there are age requirements for
the job
, These matters can be asked about on separate equality monitoring forms
Drug screening can only be undertaken with an individual’s explicit consent, but the
use of drug and alcohol tests should be justified as necessary and proportionate (eg
safety-critical jobs).
The Employment Practices Code draws a distinction between obtaining information
in order to ‘verify’ something and obtaining information in order to ‘vet’ someone.
To ‘vet’ will generally be regarded as a more intrusive act than the ‘verify’, so it
should only be used where there are ‘particular and significant risks involved to the
employer, clients, customers or others and where there is no less intrusive and
reasonably practicable alternative’.
d. Rehabilitation of Offenders Act 1974
Job applicants do not generally have to disclose spent convictions. Some excepted
professions (eg teachers, healthcare practitioners and lawyers) may have to disclose
information about spent convictions, if required.
A spent conviction or a failure to declare one is not a proper ground for dismissing an
employee.
