Introduction and Themes
Employment Law 2011 – Dr. Katarzyna Gromek-Broc
Reading:
Essential:
Deakin and Morris, chapters 1 and 2.
Lord Wedderburn ‘Labour Law 2008: 40 Years On’ (2007) 36 Industrial Law Journal 397.
You May Also Wish to Consult:
Employment Tribunal Service (2008) Employment Tribunal and EAT Statistics (GB)
1 April 2007 to 31 March 2008. Available at:
http://www.employmenttribunals.gov.uk/Documents/Publications/EmploymentTribunal_and_EAT_
Statistics_v9.pdf
Smith and Baker (10th ed.) chapters 2 and 3 ONLY UP TO p. 174.
B. Hepple ‘Restructuring Employment Rights’ (1986) 15 Industrial Law Journal 69.
S. Honeyball ‘Employment Law and the Primacy of Contract’ (1989) 18 Industrial Law Journal 97.
You May Also Wish to Consult:
S. Deakin and G. Morris (2009) Labour Law – 5th Edition Oxford: Hart Publishing, chapter 3, pp. 109 –
160 and chapter 4, pp. 217 – 255.
J. Bowers and S. Honeyball (2010) Honeyball and Bowers’ Textbook on Labour Law – 11th Edition
Oxford: OUP, chapters 2 and 3.
M. Sargeant and D. Lewis (2010) Employment Law – 5th Edition London: FT Prentice Hall, chapters 2
and 3.
Relevant Academic Analysis:
J.K. MacMillan ‘Employment Tribunals: Philosophies and Practicalities’ (1999) 28 Industrial Law
Journal 33.
H. Collins ‘Regulating the Employment Relation for Competitiveness’ (2001) 30 Industrial Law Journal
17.
D.G. Blanchflower ‘International Patterns of Union Membership’ (2007) 28 British Journal of
Industrial Relations 1.
Introduction:
Employment law is the law which applies to the employment relationship. It is important to
note that for most purposes, the employment relationship is primarily contractual – the obligations
and duties of employer and employee are set out in a contract. To some extent, this is a problem
which has plagued employment law in the UK for a great many years, as the contractual construct is
not necessarily a suitable edifice upon which to regulate the employment relationship. As we will
move on to see, the idea that the employment relationship is based on contract is largely a result of
history, rather than planning, and many authors have argued that the contract of employment
should now be consigned to history, and a new method of regulating the employment relationship
should be found.
It is important to note that some of the regulation and interface between the employer and
the employee will take place at the collective level – between trade unions and employers, rather
than through individual bargaining between employees and employers. An examination of the
historical vistas of British employment law leads many authors to suggest that the approach of the
legislator prior to the early 1980s (with some limited exceptions) was one of ‘collective laissez-faire’.
In general, employment legislation was created to facilitate some degree of ‘collective bargaining’
between trade unions and employees, but legislation granted few ‘individual’ rights to workers –
trade unions were viewed as the method through which employees were to vindicate their (union
negotiated!) rights.
In modern times, the membership and role of trade unions has reduced and changed – there
are far fewer trade union members than at any time since the early 20th century at the present time.
As a result, the power and role of trade unions has, in many sectors, declined. At the same time,
since the Thatcher years, employees have enjoyed a significant increase in ‘individual’ employment
rights. Although there is some legislation on individual employment rights from the 1960s and
1970s, such as the law on unfair dismissal was promulgated 1971, the strong individual rights which
we find today on all sorts of issues, such as non-discrimination, parental rights, modern unfair
dismissal procedures, fixed and part-time workers etc. have all been created and refined from 1980
onwards. The motivation for the growth of these ‘individual’ employment rights is the source of
some considerable controversy – although the growth of individual rights in the employment
context is welcome to some extent, the motivation for their introduction was to some degree a
political one, as the growth of individual rights has tended to weaken the trade unions. The role of
trade unions in collective bargaining and the use of collective power to protect employees’ rights
have subsequently been almost completely eroded, with many trade unions now playing more of a
role in representation of their members at Employment Tribunals etc.
Modern employment law is thus considerably more ‘legalistic’ and ‘juridifed’ than the older
law on employment matters. Though there has always been recourse to the courts in the case of
disputes over interpretation or payment for the employment contract, the rise of the huge range of
other individual rights has necessitated the development of a system of employment tribunals,
which deal with the vast majority of employment disputes in place of the ordinary courts. Despite
this development, the tribunal system is now heavily overloaded, and there is likely to be a desire on
the part of government and employers to shift towards dispute resolution which is less focused on
the tribunal system. As a result, the Employment Simplification Bill, which is due to go through
Parliament in this session, will remove the statutory grievance procedure for cases of discipline at
work and unfair dismissal, and will aim to encourage dispute resolution outside of the legal process.
It is also very important to emphasise that the influence of the European Union on
employment law, and particularly on non-discrimination measures, but also on the protection of
part-time and ‘non-standard’ workers has been profound. Much of the UK’s law on nondiscrimination has been brought about due to its EU membership, and it will be necessary for us to
consider a number of pieces of European legislation and some case law of the European Court of
Justice. It is interesting to see how European law has introduced a number of new concepts to
English employment law, some of which have been most helpful in responding to some serious
problems. In the other major sphere of European influence, the European Convention on Human
Rights and the Human Rights Act 1998 have had an impact in the sphere of trade union relations and
the right to a fair trial in front of the employment tribunals for employees.
The purpose of this Employment Law course will not only be to offer a thorough grounding
in the relevant principles of law and their application, but will also ask you to think about the
political, social and economic impacts of labour law and the legal rules which are applied. Many
authors note that one key aim of employment law is to stabilise the employment relationship, and
to minimise disputes. Collins1 has argued that modern employment law needs to create a flexible
framework for flexible working, and that much of the modern law fails to do this. All throughout the
course, I would like you to keep reflecting not only on the legal rules of employment law, but also
the social, economic and political context in which the law operates.
Themes for the Course:
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Is the contract of employment an adequate basis for the employment relationship?
Does the present ‘hierarchical’ structure of employment law, with its reliance on contract,
the considerable discretion granted to the employer and the focus on the ‘disciplining’ of the
worker really reflect the true nature of modern employment relations?
Do all workers have access to adequate protections, bearing in mind the need for flexibility
in employment relations and the need to ensure fairness at work?
Is the present law on non-discrimination adequate and effective, or are reforms needed to
the law in order to ensure equality?
Is there a ‘hierarchy’ of equalities, or should all forms of discrimination be treated in the
same way?
To what extent should the law seek to limit and control the right of the employer to
discipline and dismiss its employees?
How might dismissal law be reformed in order to make it fairer and more effective, while
balancing the need to ensure that an employer can still run its business effectively?
Can it be said that workers have ‘property in the job’, as Kahn-Freund once argued?
What role should the law have in constituting, protecting and facilitating the interface
between trade unions and employers in the UK?
Should there be a right to strike, rather than the present immunities, in UK law?
H. Collins ‘Regulating the Employment Relation for Competitiveness’ (2001) 30 Industrial
Law Journal 17.
1
The Judicial System in Employment Law:
As noted above, employment law is unusual in the sense that it has a different judicial
system to most areas of law that you will have studied. For most disputes (contractual disputes are
complex, as some actions must be brought in the County or High Courts) the first port of call is
generally the Employment Tribunal. The Tribunals are staffed by one lawyer and two lay-members,
although occasionally a lawyer may sit on his or her own. The Tribunals are empowered to make
findings of fact, and then to apply the law to the facts so found and make a decision. The idea of
having lay members present is really designed to represent the interests of employers and
employees as well as to ensure a judicial solution.
Appeals from the Employment Tribunal are to the Employment Appeal Tribunal and, with
limited exceptions, are on points of law only. The EAT panel tends to consist of a High Court or
Circuit judge, plus two, or sometimes four, lay members. The Employment Appeal Tribunal is a
‘Superior Court of Record’, with a status similar to that of the High Court, so its decisions and
precedents are important to the system as a whole. Most appeals stop when they get to the
Employment Appeal Tribunal, but there is the potential for the action to proceed through the
normal appeal structure, to the Court of Appeal, Supreme Court and, in some cases, through to the
Court of Justice of the EU via the reference procedure before they are resolved. As such, we might
see the general court structure as:
Since 2009 Supreme Court!
Other Relevant Institutions:
It is important to note that there are a number of other relevant institutions in the
Employment Law context, which have an important role to play in the employment relationship. Of
particular importance are:
ACAS – Deals with general workplace harmony, often endeavours to broker solutions to employment
disputes and strikes, and produces a number of most useful guidelines.
The Equality and Human Rights Commission - The activities and some of the guidance produced by
this Commission and its predecessors are exceptionally important.
CAC – The Central Arbitration Committee plays a crucial role in the recognition of trade unions.