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 i

PRAISE FOR EMPLOYMENT LAW, 3RD EDITION

‘The compact yet extremely informative text will prove invaluable to both
students and professionals in in the HR and legal fields. What stands out is the
clarity in which complicated concepts are broken down, and no assumption
of legal knowledge is made nor jargon used. Diagrams are used where
appropriate to ensure a full understanding of systems and processes. I
­
­thoroughly recommend this text.’
Adam Doyle, Director of Careers and Enterprise, Royal Docks School of
Business and Law, University of East London

‘This book has been written clearly and concisely and will be very useful to
students as well as professionals. Each topic covers comprehensive aspects
of case law and case studies for easy understanding. How I wish this book
was out while I was studying for my master’s degree in HRM, to learn key
points with ease and to acquire good grades. A must buy.’
Enide Freeman, Administrator, Brixton Prison

‘Employment law and practice are dynamic areas which often require quick
decision making rather than trawling through dry accounts of case law for an
answer. This book offers that depth and knowledge while remaining a concise
and easily understood reference point for a diverse range of employment and
HR topics.’
Chris Dobbs, Employment Solicitor, Frettens

‘As a past HRM student, I would highly recommend the third edition to all
students who wish to embark on their career as HR professionals. The book
provides in-depth knowledge on Employment Law and the core principles
and legislation of HRM in global business, which I found fascinating.
Karine Harutyunyan, HR Business Partner, Security Industry Authority
ii

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 iii

HR FUNDAMENTALS

3RD EDITION

EMPLOYMENT
LAW
A PRACTICAL INTRODUCTION

ELIZABETH AYLOTT
iv

Publisher’s note
Every possible effort has been made to ensure that the information contained in this book is
accurate at the time of going to press, and the publisher and author cannot accept
­responsibility for any errors or omissions, however caused. No responsibility for loss or
­damage occasioned to any person acting, or refraining from action, as a result of the ­material
in this publication can be accepted by the editor, the publisher or any of the ­author.

First published in Great Britain and the United States in 2014 by Kogan Page Limited
Third edition published in 2022

Apart from any fair dealing for the purposes of research or private study, or criticism or review, as
permitted under the Copyright, Designs and Patents Act 1988, this publication may only be
reproduced, stored or transmitted, in any form or by any means, with the prior permission in
writing of the publishers, or in the case of reprographic reproduction in accordance with the terms
and ­licences issued by the CLA. Enquiries concerning reproduction outside these terms should be
sent to the publishers at the undermentioned addresses:

2nd Floor, 45 Gee Street 8 W 38th Street, Suite 902 4737/23 Ansari Road
London EC1V 3RS New York, NY 10018 Daryaganj
United Kingdom USA New Delhi 110002
India
www.koganpage.com

© Elizabeth Aylott, 2014, 2018, 2022

The right of Elizabeth Aylott to be identified as the author of this work has been asserted by her in
accordance with the Copyright, Designs and Patents Act 1988.

ISBNs
Hardback 978 1 3986 0397 4
Paperback 978 1 3986 0395 0
Ebook 978 1 3986 0396 7

British Library Cataloguing-in-Publication Data

A CIP record for this book is available from the British Library.

Library of Congress Control Number

2022932024

Typeset by Integra Software Services, Pondicherry

Print production managed by Jellyfish
Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY
 v

With love to my dear sister Sarah,

and her family, Paul, Jacob, Sam and Hannah.
vi

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 vii

CONTENTS

About the author xii

Introduction 1

PART ONE
Fundamentals

01 What is employment law? 9

Employment law 9
Domestic law 10
European law 12
In context – social justice and fairness 13
The law and models of justice 15
In context – the effect of regulation 16
The role of the court system 19
Civil and criminal law 19
The role of courts in employment law 19
The role of tribunals in employment law 20
Out-of-court settlements 25
Conclusion 27

02 The importance of employment law 29

Protecting employees 29
Work–life balance rights 30
Discrimination rights 32
Contractual rights 34
Dismissal rights 37
Protecting employers 40
The role of legislation in supporting employers 41
Keeping up to date 46
How to keep up to date 47
Conclusion 48
viii Contents

03 Employment law and strategy 51

A legal and moral framework 51
The legal and moral framework for employers and stakeholders 52
The law, ethics and organizational values 54
The role of the HR professional 56
Business strategy and legal compliance 56
Lifecycle – small and medium-sized enterprises 57
Lifecycles – growth and maturity 58
Lifecycles – decline 59
Advice and guidance 59
Courage to challenge 60
The role of the HR professional in a global business 60
Multinational corporations 61
Conclusion 62

PART TWO
In practice

04 How it works 67
Managing the start of the employment relationship 67
Preventing discrimination in recruitment 68
Positive action 69
Occupational requirements 70
Immigration and employment 71
Employing temporary staff – the Agency Workers Regulations
2010 77
Establishing contracts 79
Managing change 81
Changing contracts 81
Business transfers and service provision changes – transfer of
undertakings (TUPE) 84
Managing people 88
The Data Protection Act 2018 89
Discrimination – Equality Act 2010 89
Tests for discrimination 93
Remedies and awards for discrimination 93
Vento Bands 94
 Contents ix

Absence management 95
Health and safety 98
Covid-19 and health and safety 101
Managing terms and rights 101
Equal pay 102
Family friendly rights 105
Other statutory rights 111
Managing the end of the employment relationship 113
Dismissal 114
Redundancy 115
Notice and holiday rights 118
Avoiding discrimination with redundancy decisions 119
Conclusion 119

05 How you do it 122

Managing the start of the employment relationship 122
Key issues – status 123
Day one rights and rights that accrue 125
Managing change 126
Changing contracts – gaining consent 126
Communicating business transfers to stakeholders 126
Settlement agreements 128
Managing people 129
Challenging discrimination 129
Managing health and safety 133
Personal injury claims 135
Managing short-term absence 137
Managing long-term absence 142
Pay and benefit issues for long-term sickness 146
Managing terms and rights 148
Family friendly rights – maternity 148
Equal pay – job evaluation schemes 148
Managing the end of the employment relationship 152
A brief review of misconduct dismissal 152
Managing individual redundancy consultations 155
Conclusion 159
x Contents

06 Planning and action 161

Managing the start of the employment relationship 162
Shortlisting 162
Managing change 163
Changing contracts – planning communication 163
Managing people 164
The practicalities of family friendly rights 165
Taking shared parental leave 166
Establishing a diverse workforce 168
Planning to reduce absence 169
Ensuring a healthy and safe workforce 172
Managing terms and rights 174
Managing an equal pay audit 175
Managing the end of the employment relationship 178
Planning for replacement and retirement of staff 179
Planning a programme of redundancies 181
Preparing for an Employment Tribunal 182
Conclusion 184

07 Measurement 189
The employment relationship 190
Measuring turnover and headcount 190
Grievance and discipline 191
Managing people 191
Discrimination – equal opportunities monitoring and impact
assessment 192
Discrimination – gender pay gap reporting 194
Absence management – monitoring absence 195
Health and safety – monitoring accidents and incidents 196
Measuring terms and rights 197
Pay reviews 198
Audits 198
Public interest and a whistle-blowing policy 200
Conclusion 201
 Contents xi

08 Conclusions and Government changes

to employment law 202
Changes to employment law 202

References 204
Cases and legislation 216
Index of case studies 219
Index 220
HR Fundamentals series 227

Downloadable resources are available at www.koganpage.com/employmentlaw

xii

ABOUT THE AUTHOR

Liz Aylott is an educationalist and author. For the last 17 years she has
lectured at all levels on HRM and business, and taught on CIPD programmes
at Levels 3, 5 and 7, and she continues to support CIPD students at Level 5
in Employment Law and Relations modules. She has provided a range of
training programmes for individuals and clients and advice for businesses,
ranging from a series of courses to introduce a new performance manage-
ment system to career development and outplacement workshops.
Liz has a passion for developing expertise at all levels, for those embarking
on a new career or for more experienced professionals, and for making learn-
ing accessible to all. For example, she has enjoyed coaching individual
students through a range of business-based NVQs and Apprenticeships at a
variety of different businesses, from large multinational corporations to small
businesses. While possessing an enthusiasm for facilitating and supporting
employees to build on their strengths, she has also enjoyed the ability to
provide advice as necessary, in particular for small businesses as they develop
their HRM practice.
She has a broad interest in HRM but with an emphasis on employee
voice, perceptions of justice and fairness, supporting HRM in SMEs and
also employee absence and poor performance. Amongst her writing, she has
written Case Studies on Employment Law for the CIPD and a Study Manual
for Employment Relations Diploma Level 5, prepared for the Association of
Business Executives and produced by BPP Media to support students
completing this qualification.
Her primary areas of expertise are employee relations and employment
law, an interest formed when she practised as a CIPD-qualified HR manager
before moving into education. This interest has been developed from
­experience in a range of sectors, from the NHS (where she first practised as
a physiotherapist), to the charitable sector (provision for disabled adults)
and the manufacturing industry (contact lens manufacture). This experience
of being an employee (at the production line, either as a physiotherapist
providing a service or as a lecturer developing education), a line manager, a
senior manager and an HRM professional has stood her in good stead.
 1

Introduction

The pace of change of legislation makes it difficult for both employers and
employees to keep up to date with their rights and responsibilities in the
business world. The general public view Employment Tribunals through the
eyes of the media. Employers read about employees who have taken discrim-
ination cases winning large sums, and fear the cost of Employment Tribunals.
The removal of fees in July 2017 increased the risk for employers, as
employees have easier access to justice. Since then, the numbers of claims
have been variable but the trend has increased. In fact, in the period March
2020–21 there was a total of 43,705 Employment Tribunal claims compared
to 39,802 the previous year. This was to be expected with increased redun-
dancy as the furlough scheme ended, changes in working conditions and
increased unemployment due to the Covid-19 pandemic. It is uncertain
whether tribunal case numbers will continue to increase after the impact of
the pandemic has lessened.
This is the environment in which human resources (HR) professionals
practice. We, as HR professionals, support line managers and senior manag-
ers to apply the law in our day-to-day work, and through the policies and
procedures of the company we apply law to support employees to gain their
rights and understand their responsibilities. With our up-to-date advice and
our attempts to support the company to build an atmosphere of trust, we
protect the company from Employment Tribunal claims. If there are claims
we may find that we are involved in gathering evidence for the company’s
lawyer and may be called as a witness for the company, to give an account
of our involvement in the case.
It is the HR professional who is viewed by the company as the expert in
employment law, and it is a heavy responsibility. This book has been written
to help HR professionals to build their expertise in order to support both
employers and employees.
2 INTRODUCTION

Aims of the book

The CIPD Profession Map (CIPD, 2021a) refers to the need to know how to
advise others on the law, to interpret it into people practices and how to
assess and manage the impact of changes in employment law on the organi-
zation and its practices. HR professionals also may need to have a more
detailed knowledge of law in international jurisdictions.
This book provides a real-world foundation for those of us completing
the CIPD qualifications at all levels, and also those aspiring HR profession-
als completing a degree who may wish to use a very practically based book
to understand employment law. Its primary focus is the need for HR profes-
sionals to understand and apply law, rather than a review of statute and case
law. It provides a p­ ractical understanding of fundamentals of employment
law for those of us new to the profession, whether we are an HR generalist,
working in employment relations or taking up a new role as an employment
law specialist. It focuses on the law that is relevant to an HR professional
and so covers employment law for those working without Trade Unions
and, as many HR generalists may have some health and safety responsibility,
we also review health and safety legislation.
Employers that work without Trade Unions need to relate more closely
with employees. For those employers that have recognized Trade Unions
there is a main body that acts as representative for the employees and the
HR professional may be responsible for supporting line managers:

●● involved in collective bargaining, negotiating pay increases and other

collective changes to terms and conditions;
●● in negotiating variations of contracts with the Trade Union, rather than
individuals;
●● in providing collective involvement and participation methods which
include the Trade Union;
●● in managing discipline and grievance procedures with Trade Union
representatives.

Some of the practicalities of working with Trade Unions are to be found in

the companion book in this series, HR Fundamentals: Employee Relations
(Aylott, 2022).
The book has also been written for those studying the new 2021 CIPD
qualifications, and in particular the content of the Level 5 Associate Diploma
in People Management or the Level 5 Apprenticeship Scheme. It covers the
learning outcomes of these two courses and you will find the content mapped
 INTRODUCTION 3

across to the chapters. The book is not written to support Level 7 (Masters
Level) courses with employment law content, but could be used as pre-read-
ing to introduce students to the subject prior to commencing a Masters
Level course.
It is important to stress that this book should be read together with its
companion book, HR Fundamentals: Employee Relations. Discipline and
grievance procedures are covered in detail in the companion book, along
with dismissal and constructive dismissal. This is because these areas of HR
practice are basic to employee relations and indicate the link between under-
standing pure employment law as a lawyer and applying law in HR practice.

Structure of the book

This book introduces key themes which are then covered in more detail in
the following chapters, with a focus on the application of law at the begin-
ning of the employment relationship (during recruitment and selection),
during the employment relationship and at the end of the employment rela-
tionship (at resignation, dismissal or redundancy).
In Chapter 1, we introduce the sources of law, the court system and
Employment Tribunals. We examine how law is changed, the effect of legis-
lation on the economy, employees, employers and society, and the role of
legislation on the distribution of social justice. We establish the impact of
Brexit and the Covid-19 pandemic on employment law. We review the
Employment Tribunal process and out-of-court settlements.
In Chapter 2, we justify the need for employment law, for both employers
and employees. We review the need of employees for a work–life balance,
anti-discrimination practices and protection against unfair dismissal. We
also review the support that employers gain by following the law. We look
at the way in which employers may keep up to date with both statute and
case law. In this chapter we introduce two areas of law – the contract and
whistle-blowing – and also provide you with sources of information to keep
up to date.
In Chapter 3, we compare our ethical and moral framework, the values
of the company and law, and look at when we might comply with the law
and when it may be preferable to go beyond the minimum that the law
demands. We examine the role of the HR professional and the impact of law
for different business strategies and at different stages in the organization’s
lifecycle, and our need to have the courage to challenge when necessary.
4 INTRODUCTION

In Chapter 4, we review how the law works in practice, throughout the

employment relationship, from recruitment and selection to dismissal. We
examine discrimination legislation and the recruitment of workers from
overseas and temporary staff. We look at changes in contracts and the law
surrounding outsourcing and transferring in employees. We explore how to
manage absence and health and safety. We review our role in ensuring equal
pay and procedures for dealing with family friendly rights. Finally, we
explore the redundancy process.
In Chapter 5, we continue the practical theme throughout the employ-
ment relationship, examining how we work in practice in more detail. We
clarify the issues surrounding the employment status of employees and look
at how we gain consent to changes to employment contracts. We review
how we might choose to communicate business transfers to stakeholders
and, when problems occur, how we might arrange settlement agreements.
We examine how short-term and long-term absence is managed and how we
play a role in challenging discrimination. We look in more detail at both
health and safety and maternity leave and pay, along with the practical issue
of job evaluation. Finally at the end of the relationship, we explore how we
might support employees facing redundancy.
In Chapter 6, we continue the practical theme by looking at particular
issues in more detail. We go on to take a logical path from the beginning of
the relationship at recruitment, through managing change and people, and
terms and conditions, to the end of the employment relationship. We exam-
ine the risk of discrimination in short-listing, and discuss ‘keeping-in-touch’
days. We evaluate methods for reducing absence and assess the key points
for carrying out an equal pay audit. We look at health and safety training,
our legal responsibility to report accidents and incidents, review succession
planning and the law, and finally investigate the support that can be provided
for redundancy programmes.
In Chapter 7, we examine how we might measure the legal compliance of
the company. This is a management of risk and is not solely reliant on the
measurement of Employment Tribunal claims. We review some of the indi-
cators of problems within the company – turnover and sickness absences,
accidents and incidents can all reveal problems with the way the organiza-
tion is being run, not just compliance with employment law. We also explore
the role of audits in reducing risk.
 INTRODUCTION 5

Third edition
As you would expect in a fast-moving legal environment, this third edition
of the book provides the reader with an up-to-date view of the ­developments
in employment law and the practical implications for the reader. This third
edition is written in the context of Brexit and the Covid-19 pandemic, and
the influence of both is covered throughout the book.
When I wrote the second edition, we had hoped that there would be
­clarity, and at last we have some idea of how domestic employment law can
be formed and the future jurisdiction of the European Court of Justice.
At that time, in 2018, we were concerned about these ambiguities, and
how business needed time to change to meet any demands particularly in
relation to immigration, and the recruitment and retention of employees
from the EU. However, the world at work has changed dramatically and
having just experienced the demands of working through a pandemic, HR
professionals should feel that they are well abled to face ambiguity and
rapid change.
This book does not purport to be an in-depth review of employment law
for lawyers, but is written for newly qualified HR professionals, and students
of HR, particularly at levels 5 and 7. It ensures that HR practitioners have
the skills at hand to interpret law and determine what they should do.
This new edition has been thoroughly amended and updated. It now
considers how the law has changed, particularly in the areas of immigration
and statement of particulars and cross-border transfers of data, under the
Data Protection Act 2018. It also includes up-to-date case law which has
influenced how a tribunal may review indirect discrimination, amended
Vento bands, more detail on tests for discrimination, discrimination arising
from disability, legal defences and remedies. It reflects on cases of n ­ egligence
and personal injury and takes an approach to diversity in the workplace
which shows how far diversity has been encompassed without downplaying
the discrimination that many employees face on a day-to-day basis.
Bereavement and Shared Parental Leave and Pay are covered in more detail,
and, of course, its case studies have been updated to reflect the change in
case law and HR perspectives.
Some areas of law are excluded – for example, there is some reference to
the complexity of holiday pay, but this is not expanded on. It is a ­predominantly
a low-cost and relatively rare issue. However, cases of complex employment
status, dismissal and discrimination are more relevant (and costly to both
6 INTRODUCTION

respondent and claimant) and so additional information has been provided

to support HR practitioners with this.
HR professionals need to apply the law with a good foundation of the
principles. This edition has ensured a close alignment to the Specialist
Employment Law (Level 5) and Advanced Employment Law in Practice
(Level 7) CIPD qualifications, and to degree-level HR employment law
courses. But it is a workable guide, to be used in practice, with a focus on
practical tasks that need the professional to act legally – for example, it
reflects on how an employer can make redundancies and avoid d ­ iscrimination
claims.
It is hoped that this readable text develops your interest in the law, but it
will suffice if it enables you both to protect your employer from litigation
and support managers to get their best out of employees within the law.
 7

PART ONE

Fundamentals
8

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 9

01

What is employment law?

INTRODUCTION

Both employers and employees are protected by legislation, but to most people
it is complex and confusing. This chapter seeks to introduce employment law,
the court system and tribunals in an easy to understand manner. It also will
discuss the reason for employment law and the effect of this law on all parties.
In this chapter we will explore:

●● the sources of domestic law and the influence of European law on the UK;
●● the process for changing laws;
●● the relevant structure of the Civil Courts and the Employment Tribunal
system;
●● the role of law in distributing social justice and ensuring fairness;
●● the impact of Brexit and the Covid-19 pandemic on law;
●● the effect of regulation on the economy, employees, employers and society;
●● the Employment Tribunal process and out-of-court settlements.

Employment law
Employment law can be separated into three main themes:

●● health and safety legislation;

●● individual employment legislation;
●● collective employment legislation.

The health and safety of workers has been ensured with a framework of
legislation for many years, but this is not true of collective employment
10 FUNDAMENTALS

legislation which has been limited, with the UK preferring a voluntary

approach. Employment law has moved from being based on common law to
relying on statute. The extent of law covering these three main themes is vast
and extends far beyond a book on the fundamentals of employment law. We
will be focusing on individual employment law and touching on health and
safety legislation.

Domestic law
The UK has a common law system. This means that judges have two main
legal sources from which to make decisions: statute and common law.

STATUTE
When the Government believes there may be a requirement to change law
it will seek the views of key organizations and individuals by consultation.
The consultation has a set time-frame, sets out the current law and prepares
questions to be answered. The Government also prepares an impact assess-
ment, which looks at the options and the costs of each one. For example,
the consultation for pregnancy and maternity discrimination to extend
redundancy protection for women and new parents ran from January to
April 2019. In this case there had been research into the prevalence of
pregnancy and maternity discrimination and evidence to the Women and
Equalities Select Committee which supported the need for additional
protection. This led the Government to consult. As a result, the Pregnancy
and Maternity (Redundancy Protection) Bill 2019–2020 was introduced
to the House of Commons in July 2020. It is progressing through
Parliament, but is yet to have its second reading. It is not known when this
will be sent to the House of Lords, and then on for Royal Assent to become
Statute.
A statute is primary law, and will be described as an Act of Parliament.
Where necessary, statutes will allow for future regulations to be added and
these are known as Statutory Instruments (SI). These Statutory Instruments
ensure that additional detail or particular changes can be made to the Act
without having to put the whole statute through Parliament. For example,
the National Minimum Wage Act 1998 has been amended by the National
Minimum Wage (Amendment) Regulations 2020 (SI 2020/338) whereby
annual changes for the 2020 National Minimum Wage have been inserted
into the regulations.
 WHAT IS EMPLOYMENT LAW? 11

CASE LAW
Over the years, judges have made decisions on cases that have become a
binding precedent, as they have interpreted the law in a particular new way.
It is not the actual decision that becomes binding but the reason for the deci-
sion which then can be applied to other similar cases: if the facts of the
current case significantly resemble those of the precedent then it will be
binding. Judges will interpret the facts of the case in light of any relevant
case law and apply this to the case to support them in making their decision.
These precedent cases help by providing practical situations to which
statute law has been applied. For example, the Employment Rights Act 1996
provides information on the right not to be unfairly dismissed and the reme-
dies for unfair dismissal but it is British Homes Stores v Burchell (1980) ICR
303 EAT that provides clarity on how to determine whether an unfair
dismissal case has been managed correctly.
Courts higher in the hierarchy have precedent over the lower-level courts.
This means that decisions made at Supreme Court level take p ­ recedent over
those made at Employment Appeal Tribunals or Employment Tribunals.
Case law making precedent includes Vento v Chief Constable of West
Yorkshire Police (No. 2) (20 December 2002) which set the banding for
injury of feelings in discrimination cases, and R (on the application of Age
UK) v Secretary of State for Business, Innovation and Skills (25 September
2009) which resulted in the retirement age being abolished in the UK.

CODES OF PRACTICE
Codes of Practice have been particularly relevant in the education and
support of employers to apply statute. The Advisory, Conciliation and
Arbitration Service (Acas) has a duty to provide Codes of Practice ‘as it

FIGURE 1.1 The Employment Tribunal system

Supreme Court

Court of Appeal

Employment Appeal Tribunal

Employment Tribunal
12 FUNDAMENTALS

thinks fit for the purpose of promoting the improvement of industrial rela-
tions’ (Trade Union and Labour Relations (Consolidation) Act 1992, s.199),
and the Secretary of State also has the power to produce Codes of Practice,
in consultation with Acas. The Equality and Human Rights Commission
(EHRC) and the Health and Safety Executive (HSE) can also produce Codes
of Practice.
Employers that fail to abide by these Codes of Practice are not liable and
therefore judges cannot base their decisions on the fact that these Codes of
Practice have not been applied in the workplace. However, judges are able
to take the failure to adhere to a Code of Practice into account. This means
that this factor may support other facts which lead judges to their decisions.

European law
As a result of the Brexit vote, the UK is no longer a member of the European
Union, and the relationship between the European Union and the UK is
described in the Withdrawal Agreement. A transition period ended on
1 January 2021, and from 1 February 2021 the UK cannot be involved in
EU decision-making. This means that the UK is not subject to any new EU
legislation. Article 86 (1) of the Withdrawal Agreement deals with cases that
are pending at this time, and states that these pending cases are in the juris-
diction of the European Court of Justice and can be heard. If there are
infringements of European Law during the transition, the European Court
of Justice has four years to take up infringement proceedings for these
breaches of European law.
EU directives have been already incorporated into domestic law. For
example, the Parental Leave Directive (96/34/EC) was implemented in the
UK in 1999, as an amendment to the Employment Rights Act 1996. The
rights are incorporated into the Act and the details placed in a S­ tatu­tory
Instrument, the Maternity and Parental Leave Regulations 1999 (SI
1999/3312). The Parental Leave Directive (96/34/EC) has now been repealed
by the European Union and replaced by the Parental Leave Directive
(2010/18/EC) with the rights remaining in the Employment Rights Act 1996
and the details found in the Statutory Instrument, the Parental Leave (EU
Directive) Regulations 2013 (SI 2013/283). Here the UK has been able to
apply its own interpretation of parental leave and the 2013 Regulations are
as a result of consultation.
 WHAT IS EMPLOYMENT LAW? 13

Sections 2 to 4 of the Withdrawal Agreement cover EU law, and the UK

has been working through secondary legislation to make it easy to use. If in
doubt, it is wise to check, as some EU legislation has been revoked.

In context – social justice and fairness

We need to appreciate social justice and the approach of international bodies
to social justice if we are to understand the reasoning behind legislation,
rather than just how to apply the law. Social justice is the distribution of
advantages and disadvantages within society and is based on equality and
equal opportunity. It concerns aspects of citizenship, covering access to
healthcare, education, justice and an acceptable standard of living. Within the
workplace, social justice also refers to access to rights and fairness. For exam-
ple, it refers to the right to influence decisions (employee voice), the right to
justice (access to appeals) and protection against exploitation (fair distribu-
tion of pay and benefits). Social justice to some degree is supported by law.
The International Labour Organization promotes ‘decent work’ for all
on an international scale and has agreed the principles of fundamental rights
with its member states. These include:

●● the right to association and collective bargaining;

●● the elimination of child labour and all forced labour;
●● the elimination of discrimination.

The International Labour Organization (2021a) describes decent work as

involving ‘opportunities for work that is productive and delivers a fair
­income, security in the workplace and social protection for families, better
prospects for personal development and social integration, freedom for
­people to express their concerns, organize and participate in the decisions
that affect their lives and equality of opportunity and treatment for all
women and men’. This puts social justice on the employment agenda but
these principles are only basic rights with little legal foundation. They are
accepted through member country ratification and monitored by the
International Labour Organization.
While the International Labour Organization may be viewed as using
their position solely to reduce poverty and social exclusion, it is argued by
some academics that they may be protecting employment rights against the
14 FUNDAMENTALS

effects of competitiveness. Multinational companies can choose where best

to site their businesses and the legal rights of employees play a part in this
decision. They may choose to base their businesses in countries where their
responsibilities to employees are less onerous, laws are less complex or are
poorly drafted, and it is easy both to hire and fire (and therefore easier to
create new jobs). This concept, ‘the practice, undertaken by self-interested
market participants, of undermining or evading existing social regulations
with the aim of gaining competitive advantage’ (Bernaciak, 2014), is known
as ‘social dumping’. Social dumping drives down social standards and
employment protection, but the current domestic legislation maintains a
minimum protection of rights, including minimum pay.
So the UK law protects the rights of the weaker party in the employment
relationship against discrimination, slavery and child labour. It ensures that
rights are secured for all employees, not just distributed arbitrarily, depend-
ent on the discretion or whim of an employer. It also ensures that all
employees are treated equally and protects against negligence.
However, while law protects the weaker party we cannot assume that it
reflects a moral stance. While laws should follow natural justice, moral
choices depend on the perspective of each individual and determining what
is natural justice may be difficult. For example, in the UK not all employ-
ment rights are protected at the beginning of the employment relationship
and to qualify for the right to be protected from unfair dismissal, the
employee needs to have two years’ service. Ethically it may be argued that
this does not meet natural justice, as employers can dismiss employees with-
out following any procedure. But in this case it enables employers to have
greater flexibility and so encourages them to recruit new employees, reduc-
ing unemployment at a time of economic hardship.
So a country’s values and approach to social justice is reflected in its
laws. While the UK does not make explicit its values, these values are
supported by a history of employment legislation prior to membership of
the EU (Vipond, 2016). However, we do have clearly described what the
UK seeks its young people to learn in terms of values. ‘Schools should
promote the fundamental British values of democracy, the rule of law, indi-
vidual liberty, and mutual respect and tolerance of those with different
faiths and beliefs’ (Department of Education, 2014). The UK supports its
young people to build ‘an understanding of the importance of identifying
and combatting discrimination’. This helps us see how the UK might reflect
social justice.
 WHAT IS EMPLOYMENT LAW? 15

The CIPD’s values will also be reflected in the world of work, and play a
role in influencing the values of the UK as a whole. The CIPD’s three values
are: ‘Work Matters, People Matter and Professionalism Matters’.
This means ‘work is safe and inclusive’, ‘people deserve to be treated
fairly’ and ‘act with integrity’ (CIPD, 2021d).

The law and models of justice

In HR Fundamentals: Employee Relations (Aylott, 2022) we reviewed the
four different types of justice and described them as follows:

●● Distributive justice is the perceived fairness of the allocation of rewards.

●● Procedural justice relates to the fairness of the procedures used, and
employees evaluate the fairness against a number of criteria. These
include the way in which the organization selects managers in the process,
the method used to collect information, how decisions are made and
whether there is access to an appeals process (Leventhal, 1980). An
employee may perceive a procedure as unfair if there is no method to
appeal a decision.
●● Interactional justice relates to the relationship the manager has with the
employee and fairness within the supervisory relationship. This could
include the manager’s dishonesty, invasion of the employee’s privacy,
disrespectful treatment and derogatory judgements (Bies, 2001). An
employee may accept a low pay rise if given a clear explanation and
treated with respect by his or her line manager.
●● Informational justice refers to the transparency of information about the
process. Some employers make sure all procedures are clearly explained
on their intranet sites.

Employment legislation is specifically effective in the provision of distri­

butive justice (for example, ensuring payment in lieu of any remaining
holiday pay at dismissal) and procedural justice (for example, the discipli-
nary pro­cedure). The provision of interactional justice can be seen in the
role of anti-discriminatory legislation.
The next case study illustrates the different types of justice in terms of an
Employment Tribunal case.
16 FUNDAMENTALS

CASE STUDY
Cooking up trouble

In the case of McAlister v HRM Pubs Ltd [2302081/2016], Mr N McAlister, the

claimant, was a trainee chef for HRM Pubs Ltd from 14 February 2016 until 10 August
2016. His employer paid him in cash ‘for a little bit and then they would put him on
the books’, but the Tribunal found that this decision was that of the employer and
that he did not choose to be self-employed. The Tribunal also found that Mr
McAlister and the employer had mutuality of obligation, and this was sufficient to
have worker status. On 1 May 2016 the claimant requested to be taken ‘onto the
books’ and became an employee.
The Tribunal found that in the period from 14 February 2016, when the claimant
started with the respondent, to 30 April 2016, the day before he was acknowledged
as an employee, he was at the very least a worker and entitled to holiday pay. He
was also entitled to holiday pay of five days for the period he was an employee.
The finding of payment due for holiday describes the need for distributive justice
that the claimant was seeking. It was agreed that the claimant was entitled to
holiday pay in the gross sum of £307.36 for the period from 1 May to 4 August 2016.
With the agreement of both parties and following findings on liability, the net figure
for the period from 14 February 2016 to 4 August 2016 was agreed as £530.38.
The payment of a costs order or a preparation time order is allowed when a party
(or that party’s representative) has acted vexatiously, abusively, disruptively or
otherwise unreasonably in either the bringing of the proceedings (or part) or the way
that the proceedings (or part) have been conducted (Rule 74 (1) of the Employment
Tribunals (Constitution and Rules of Procedure) Regulations 2013). The normal
procedures are that the employer pays outstanding holiday pay at the termination of
employment, if this has not been paid when it became due. The orders given
provide some recompense to support procedural justice, and in this case, there was
an award of £390 in respect of the claimant’s tribunal fees, as a cost order.
There is no interactional justice provided by the Tribunal. The employment has
been terminated, and any opportunity to rebuild the employment relationship
has long gone. The fact that the respondent did not attend the Tribunal does not
allow for any resolution, and for the employer, the employment relationship may be
viewed as no longer of importance.

In context – the effect of regulation

Regulation of the employment relationship will impact on employers,
employees, the unemployed and society, and it can be argued that a non-
 WHAT IS EMPLOYMENT LAW? 17

regulated labour market would enable employees to compete on merit,

purely the effect of supply and demand. In the UK, if we exclude health and
safety legislation, for which there has been statute and case law for over 200
years, there has been little employment statute or case law and instead a
history of voluntarism rather than law in relation to collective employee
relations. This has changed, with the rights of employees becoming more
than that of determining whether the contract has been breached, but
instead has been reinforced as rights in statute, and collective employee rela-
tions have been given a solid legal framework.
When regulation is discussed it is the effect of employment protection
legislation that is predominately referred to. Since 1946, when Stigler first
argued against the minimum wage, the role of employment regulation has
been viewed by traditional economists as detrimental. More recently, highly
regulated employment protection has been shown to slow down the labour
market, with employers retaining employees during a recession but not
recruiting new employees for fear of problems when dismissing them later
on. This therefore has little impact on unemployment levels but the lack of
movement means that those who become unemployed may spend longer
waiting to find another job (Blanchard and Landier, 2002). Some govern-
ments have provided partial regulation in some cases. For example,
employment protection legislation makes it difficult for French employers to
make employees redundant but with fixed-term contracts the severance pay
is less. At the end of the fixed term, employees may be made redundant or
become permanent staff. In the UK the application of unfair dismissal rights
normally only commences after two years’ service (with some exceptions).
Blanchard and Landier (2002) believe that such partial protection is detri-
mental to employees and the labour market. They suggest that while it
persuades employers to recruit, it also encourages them to dispense with
staff while the cost is low and re-recruit a new employee.
One political argument is to reduce employment protection legislation to
improve labour market flexibility and reduce the impact on long-term
unemployment. However, it is very difficult for a government to propose
reduction or elimination of employment protection legislation. Such legisla-
tion protects existing employees in their jobs. If it remains difficult for
employers to dismiss or make employees redundant then employees have
greater bargaining power for better terms and conditions. Employment
protection legislation provides employees with a degree of job security and,
if employers are to retain their existing employees, enables these employees
to develop their abilities and, in particular, access company-specific training.
A stable and trained workforce enables the organization to be more
18 FUNDAMENTALS

c­ ompetitive. This is because an employee with good job security will ‘go the
extra mile’ and any resulting improved productivity matches any additional
costs of legislation to the employer (Altman, 2000). In fact there is evidence
that job security along with other high-commitment practices can improve
business performance and competitiveness (Pfeffer, 1998).
So despite the traditional economic argument against regulation, and the result-
ant effect on long-term unemployment, a degree of regulation is necessary to:

●● meet political and social demands;

●● provide a stable and engaged workforce;
●● build competitive companies;
●● sustain the economy.

CASE STUDY
Purpose of employment law: balancing employer flexibility and employee
protection

The approach of the Confederation of British Industry to the legal framework for
employment is usually to press for decreased regulation and increased flexibility. This
is illustrated by its response to the Taylor Review (Taylor, 2017; East Midlands
Business Link, 2017). CBI has consistently sought to have UK laws which put UK
business in a position of competitive advantage and unlocks entrepreneurship and
creates growth and job creation. This remains the CBI’s focus on employment law in
the UK. The Covid-19 pandemic and the uncertainty of the impact of Brexit has made
the business environment turbulent. The CBI continues to press for a flexible
employment market with decreased regulation. For example, in 2019 the CBI fought
successfully to retain the UK definitions of employment status rather than that of the
EU, which would have extended employee rights to all workers.
The TUC also seeks to influence government and the development of future
legislation. They also want a strong economy, jobs and growth, but focus on the
protection of employee rights. For example, in March 2020 the TUC reported on the
need for a worker subsidy scheme to support employees whose work had been
affected by Covid-19. This was taken up by the Government in its furlough scheme,
which protected both jobs and wages (TUC, 2020).
Despite different perspectives, both the CBI, which represents employers, and the
TUC, which represents employees, have agreement on the need for employee
representatives, though so far there have been no moves towards this in the
Industrial Strategy White Paper (HM Government, 2017). Both the CBI and the TUC
will continue to lobby Parliament with their particular perspective on employment
and the need for future legislation.
 WHAT IS EMPLOYMENT LAW? 19

The role of the court system

The court system provides a structure for cases to be heard and a system of
appeal in order for parties to gain justice.

Civil and criminal law

Within the UK law there are two subdivisions, criminal and civil law, each
with its own court system. Civil courts provide a way for claims to be made
to compensate for loss. In general, employment cases fall under the civil law
but some cases may have a criminal element and so may be prosecuted by
the Crown Prosecution Service.

The role of courts in employment law

The majority of cases that affect employers and employees will be heard at
an Employment Tribunal. If the Employment Tribunal has erred in its judg-
ment on a question of law then the case can be referred to the Employment
Appeal Tribunal. Appeal can then be taken up to the Court of Appeal and
the Supreme Court.
Cases of negligence are usually related to health and safety legislation.
The Employment Tribunal does not have jurisdiction over negligence cases

FIGURE 1.2 Civil Court system

Supreme Court
(Appeals on point of law)

Appeal Court Employment Appeal Tribunal

(Appeals on point of law) (Appeals on point of law)

High Court – Queen’s Bench

First Tier Employment Tribunal
Division
(First hearing)
(Both appeals and complex or
high value cases first hearing)

County Court
(First hearing for most civil
cases)
20 FUNDAMENTALS

where there has been a breach of a duty of care with a resultant injury or
loss. These tend to be heard at the High Court (Queen’s Bench Division),
with the right of appeal to the Court of Appeal and the Supreme Court.
Cases of breach of contract can be heard at the County Court with appeal
at the Queen’s Bench Division, Court of Appeal and the Supreme Court.
Breach of contract can also be heard by the Employment Tribunal, if the
claimant no longer works for the employer (repondent). A simplified version
of the civil court system is given in Figure 1.2.

CASE STUDY
Seeking damages

A lecturer at the LSE, Theodore Piepenbrock, the claimant, was subject to a formal
complaint by a woman who had made sexual advances towards him. These advances
were rejected by the claimant. The claimant became too ill to teach and did not
return to work for the LSE.
The claimant’s position was that the LSE was vicariously liable for the actions of
the woman. The claimant sought £4 million damages for psychiatric injury and as a
complex and high-level claim the case was heard in the High Court (Queen’s Bench
Division) in October 2018. The findings were that though the LSE had been negligent,
the damage was not foreseeable, and the claimant lost his case.
The claimant wished to appeal but this was refused by the Court of Appeal in
February 2019.

The role of tribunals in employment law

Prior to making a claim, the claimant must contact Acas (if in England), the
Labour Relations Agency (if in Northern Ireland) or the Workplace Relations
Commission (if in the Republic of Ireland) to seek early conciliation (EC).
This will last for up to a calendar month (31 days – this can be extended on
agreement by two weeks) and EC pauses the time limit for making a claim
to tribunal. A COT3 form will be used to record any agreement made. It is
a legally binding agreeement which settles any actual or potential claims to
tribunal.
Employees that wish to make a claim do so by completing an ET1 Form for
single claimants and ET1A Form for multiple claimants. To be accepted, the
Employment Tribunal must receive the prescribed form with the claimant’s
 WHAT IS EMPLOYMENT LAW? 21

name and address, the name and address of the respondent or respondents
and the early conciliation certificate number or numbers provided by Acas, or
a declaration that the claimant is exempt from the requirement to go through
the early conciliation process.
If an agreement is made, there is no need to go through the tribunal
process and hear the case. This saves both sides the legal costs of representa-
tion at tribunal.
The ET1 should be received by the Employment Tribunal normally within
three months of the date of termination of the contract with the employer,
or the last day that the employee worked for the employer prior to resign-
ing. There are special rules for time limits for redundancy and equal pay
claims. Once the ET1 has been accepted by the Employment Tribunal, it will
send the employer a copy of the ET1 and an ET3 form for them to complete.
The ET3 must be received by the Employment Tribunal within 28 days. If
the Employment Tribunal does not receive the ET3 it will make a default
judgment. Once the ET3 is accepted by the Employment Tribunal, a copy is
sent to the claimant and to Acas.
The role of the Employment Tribunal, including making and responding
to claims, is set out in the Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2013.

STRUCTURE OF AN EMPLOYMENT TRIBUNAL

The Employment Tribunal consists of a judge and two lay members, one
with experience of employee issues and the other employer issues. In prac-
tice this may mean that one tends to have Trade Union experience and the
other HR experience, but this is not necessarily the case. The judge must
have some legal qualification and at least five years’ experience but may not
necessarily be a solicitor or barrister, though the majority are. There are
circumstances in which the judge will sit alone.

JURISDICTION OF EMPLOYMENT TRIBUNALS

The Employment Tribunal has limited jurisdiction, which means that there
are only certain issues that the Tribunal can hear. There is a wide range
including:

●● suffering a detriment, discrimination, including indirect discrimination,

harassment or victimization or discrimination based on association or
perception on grounds of age or other protected characteristics (Equality
Act 2010, ss.13, 14, 19, 26, 27, 120);
22 FUNDAMENTALS

●● failure to pay equal pay for equal value work (Equality Act 2010, ss.64,
120, 127, 128);
●● failure to consult for redundancy (Trade Union and Labour Relations
(Consolidation) Act 1992, s.189);
●● failure to receive a redundancy payment (Employment Rights Act 1996,
ss. 163 and 177);
●● failure of the employer to consult with an employee representative or
Trade Union about a proposed transfer (Transfer of Undertakings
(Protection of Employment) Regulations (SI 2006/246), r.12);
●● the right to be accompanied – and there is detriment (Employment Rela-
tions Act 1999, ss. 11 and 12);
●● failure of the employer to pay or an employer makes unauthorized deduc-
tions (Employment Rights Act 1996, s.23);
●● failure to receive a written pay statement (Employment Rights Act 1996,
s.11(2)).

CASE STUDY
Early conciliation

Early conciliation ‘stops the clock’ on the time period for submission of a claim to the
Employment Tribunal. An application cannot be made if there is no certificate from
Acas S18A (8) Employment Tribunals Act 1996, unless the case is one subscribed by
S18A (7). Case law provides some direction on early conciliation. Some of the cases
have centred around minor errors surrounding the name of respondents, such as
Mist v Derby Community Health Services NHS Trust [2016] ICR 543, but here we look at
the completion of certificates and time limits.
For example, in De Mota v ADR Network & anor UKEAT/0305/16 both respondents
were named on a single Acas Early Conciliation form. The Employment Tribunals
(Early Conciliation) (Exemptions and Rules of Procedure) Regulations (2014) Sch.1
para. 4. state that a separate form was required for both respondents. This was
struck out by the Employment Tribunal, but at Employment Appeal Tribunal it was
held that Parliament had not intended that processes leading up to the certificate
were to be reviewed. It was a mandatory requirement to have a form, providing for
good order and administration: it was one thing to require good order but another to
restrict access to justice as a result. The certificate was valid even though it named
both respondents.
 WHAT IS EMPLOYMENT LAW? 23

In Fergusson v Combat Stress 4105592/2016, there was an issue surrounding the

interpretation of the application to Acas to stop the clock. Section 111(2) of the
Employment Rights Act (1996) provides that a Tribunal may not consider a complaint
of unfair dismissal unless it is presented before the end of the period of three
months beginning with the effective date of termination or within such further
period as the Tribunal considers reasonable in a case where it is satisfied that it was
not reasonably practicable for the complaint to be presented before the end of that
period of three months. The appellant had her employment terminated on 11 August
2016. Acas received her Early Conciliation Form on 14 July 2016 (day A) and she
received the certificate on 14 August 2016 (day B). The Employment Rights Act (1996)
S.207B (3) states that the time between days A and B will not be taken into account.
The claim was submitted on 18 November 2016 (three calendar months and four
days from the receipt of the certificate) with the rationale that the time spent in early
conciliation was added to the primary time limit.
The claim should have been submitted within three months (with the date of the
act or omission as the date of the claim). This made the claim four days late.
However, if run from day B, the claim was in time. This remains, at the date of the
case, an ambiguity in law. In this case the claim was allowed to proceed, but it is
clear that this remains a problematic area of law.

PRIOR TO THE EMPLOYMENT TRIBUNAL

It is usual that a case management meeting is held with the judge, and any
orders made by the judge will need to be complied with. To prepare for the
case both parties may wish to gain more information from each other, and
the Employment Tribunal may give orders for this. The date for the tribunal
hearing will be received by both parties at least 14 days prior to the hearing.
Each party may wish witnesses to attend and will need to send the bundle of
documents to be used at the tribunal hearing to the other party, within seven
days of the hearing. Table 1.1 shows the average awards for the different
jurisdictions.

AT THE HEARING
It is not always necessary to have a legal representative – they will have an
understanding of the process and law but there is a cost which may not be
covered despite the fact that the respondent may win the case. Each side will
be able to call witnesses, cross-examine witnesses and provide evidence
themselves. Which party goes first will depend on the case, and the burden
24 FUNDAMENTALS

TABLE 1.1 Employment Tribunal Awards 2019–20

Jurisdiction Maximum award Average award

Age discrimination £118,842 £10,812

Disability discrimination £265,719 £27,043
Race discrimination £30,330 £9,801
Religious belief discrimination £0 £0
Sex discrimination £73,619 £17,420
Sexual orientation discrimination £96,645 £27,936
Unfair dismissal £118,842 £10,812
SOURCE Ministry of Justice (2020)

of proof required. For example, in unfair dismissals the employer will

usually lead the proceedings, as they need to prove the dismissal was fair,
while in discrimination cases the employee will usually start the proceed-
ings, as it is necessary for them to prove that there may be discrimination.
The employer would then need to provide an adequate explanation for their
actions.
The case is heard, with both parties summing up their argument before
the panel, or before the judge if the judge is sitting alone. Then the panel or
the judge withdraws to make the decision. If the judgment accepts the claim-
ant’s case then both parties will need to produce evidence and submissions
that relate to the claimant’s remedy. At times there are separate remedy hear-
ings, but often evidence on remedy may be covered as part of the hearing or
covered later in the hearing itself, if there is time. The respondent should
therefore have prepared evidence. For most claims the claimant will be seek-
ing compensation for loss of earnings and the respondent may be able to
provide some evidence about how easy it would be for the claimant to find
similar employment. However, for unfair dismissal there is a possibility that
the claimant may seek reinstatement or re-engagement. Very occasionally
the Employment Tribunal may wish the respondent to provide the claimant
with the same or a similar job but the employer can prepare evidence in
order to respond to this.
 WHAT IS EMPLOYMENT LAW? 25

Out-of-court settlements
If an employer is in a dispute with an employee it is possible for the employer
to instigate a ‘without prejudice’ conversation. This means that these discus-
sions to agree a settlement cannot be used at Employment Tribunal. (It is
now possible for employers to offer and discuss settlement even when a
prior dispute between the employer and employee does not exist.)
An out-of-court settlement is when the claimant and respondent (employee
and employer) come to an agreement about the dispute without resorting to
redress through the Tribunal. This may be achieved through Acas or at any
time prior to the Employment Tribunal. Previously known as a compromise
agreement, it is a legally binding contract between an employer and employee,
usually made during or after termination of the employment contract (for
example, redundancy or dismissal). As this is a legally binding document it
is important for the employee to have independent legal advice. The legal
framework for settlement agreements can be found in s.111A Employment
Rights Act (1996) and is supported by a Code of Practice (Acas, 2013) and
additional guidance and negotiation (Acas, 2018).
Any discussion in order to make an out-of-court settlement is made ‘with-
out prejudice’ which means that the discussion and any relevant papers are
inadmissible as evidence at an Employment Tribunal. The rights discussed,
and sometimes conceded, in a private discussion are only accepted as part of
this discussion and not for any future litigation. Confidentiality must be
maintained, but the right to this is lost if there is improper conduct, as
described in the Code of Practice. So, for example, if during the seven days
an employee considers the offer, the employer reduces the offer or the
employee threatens to undermine the employer’s reputation, then the status
of ‘without prejudice’ is lost. Any document relating to the arrangement of
a settlement should be recorded as ‘without prejudice’ (but only those docu-
ments truly part of an attempt towards a settlement will be included as
‘without prejudice’ despite the term). ‘Without prejudice’ allows these docu-
ments to take a privileged status.
Settlement agreements are generally used when there is an employment
dispute but this is not necessarily the case. Settlement agreements can be
used to protect the employer, at a cost, and are consensual and mutual agree-
ments, with the employee able to reject a settlement agreement. Some
employers choose to make all redundancies through settlement agreements,
others do not, and sometimes they are used to manage an employee whose
26 FUNDAMENTALS

performance is unsatisfactory out of the organization. For whatever reason,

settlement agreements are usually proposed by the employer; and the
employee should take legal advice so they can negotiate effectively. Often
the consideration made by employers includes financial settlement but also
a job reference, helping the employee to find a new role.
There are some areas in which settlement agreements cannot be made.
For example, in cases of whistle-blowing or automatically unfair dismissal,
the employer will not be able to make a payment to the employee. This is to
protect the rights of employees.
Any payments made by means of a settlement agreement are tax exempt
(up to £30,000) as are any legal costs (new provisions are being made to
s.413A, Income Tax (Earnings and Pensions) Act (2003) to overcome these
existing provisions).

CASE STUDY
The cost of keeping quiet

Non-disclosure clauses are often placed within settlement agreements to keep

details of the circumstances that lead to the dispute, the dispute itself and the
agreement terms confidential. A non-disclosure clause can even ensure that the fact
a settlement agreement has been made is confidential.
The effect of the non-disclosure clause or ‘gagging order’ is to enforce
confidentiality, and if breached the employee is often required to repay the financial
settlement.
While non-disclosure clauses in contracts can protect sensitive commercial
information, the use of these in settlement agreements is more questionable. They
can prevent damage to an organization’s reputation and stop employees talking to the
press, but they have also prevented employees speaking out about poor or illegal
practice.
Harvey Weinstein used non-disclosure clauses to prevent employees speaking out
about sexual harassment and sexual assault. Settlement agreements should not be
used in cases of whistle-blowing, as they conflict with the protections provided by
the Public Interest Disclosure Act 1998 (PIDA). They have no legal standing, but many
employees who have signed a settlement agreement under duress fear disclosing the
facts because they worry that they will be taken to court and have to repay the
settlement.
The BBC reported that over £87 million had been paid by UK universities on
4,000 settlements (BBC, 2019). The BBC reported individual cases where employees
that had made complaints of bullying and harassment were then made to sign a
 WHAT IS EMPLOYMENT LAW? 27

settlement agreement with a non-disclosure clause. Over-use of settlement

agreements can lead organizations to deal with the employee, without investigating
the issue and preventing the misconduct happening again.
Settlement agreements must now include a clause making it clear that staff can
make a disclosure in the public interest (whistle-blow) regardless of any
confidentiality clause. Whether this is sufficient to lead employers to carry out an
investigation and get to the root of any bullying or harassment claim is questionable.

Conclusion
In general, employers and employees alike do not want to resort to the law
to resolve their differences. At times employers, particularly small employ-
ers, can feel that the extent of the law puts them at a disadvantage. Yet
employment law is there to protect the weaker party, be that a junior
member of the team being unfairly dismissed or a senior manager who is
being made redundant. Not all employers have the interests of their employ-
ees in their sights when they are seeking to be profitable or struggling to
survive. Not all employees act professionally and honestly and the law
should protect both parties.
In the next chapter we justify the need for employment law, for both
employers and employees. We review the need for employees to have a
work–life balance, anti-discrimination practices and protection against
unfair dismissal and the role of the law in supporting business reputation
and good practice. However, we finish this chapter by touching on the right
to justice and what this means.

CASE STUDY
Refunding justice

In 2013 fees were set in place for claimants at Employment Tribunal. These were set
to reduce the number of malicious and weak cases. The number of single cases
dropped by 68 per cent and multiple cases by 75 per cent in the period October
2013–June 2017 (Pyper et al, 2017). In 2017 Unison, supported by the Equality and
Human Rights Commission and the Independent Workers Union of Great Britain,
made an appeal to the Supreme Court.
Courts and tribunals ensure that the laws passed by Parliament, and the common
law produced by the courts themselves, are applied and enforced. If courts and
28 FUNDAMENTALS

tribunals are to function effectively, they need to apply and enforce the laws. The
argument to the Supreme Court was that individual members of the UK need access
to the courts to enable these courts to complete their function and that the right to
access justice is enshrined in clause 40 of the Magna Carta of 1215, which remains on
the statute book.
It was also argued that the right to access justice through the courts is not a
purely private matter. The decision in an individual case may have wider
implications; for example, the case of Dumfries and Galloway Council v North [2013]
UKSC 45; [2013] ICR 993 resolved an issue of law over equal pay.
And finally it was argued that individuals need to know that there is a method for
protecting their rights and a remedy against those who fail to meet their obligations.
The Supreme Court reflected on the argument that ‘the sharp, substantial and
sustained’ drop in claims indicated that a significant number of people had been
affected adversely by the Fee Order. It held that there was no justification for the
fees and that they were unlawful. They held that all fees should be refunded, and
this is now in the process of being carried out. This remains an important part of the
history of Employment Tribunals and allows justice to be accessed regardless of the
financial situation of claimants.
 29

02

The importance of employment law

INTRODUCTION

Employment law ultimately protects employees from exploitation, but it also

works towards good practice and encourages activities that will support
business. In this chapter we justify the need for employment law for both
employees and employers. This will also give us the opportunity to introduce
the employment contract with its implied and express terms, the formal
document on which, it can be argued, the employment relationship is based.
In this chapter we will explore:

●● the needs of employees for a work–life balance, anti-discrimination

practices and protection against unfair dismissal;
●● the different implied contractual rights for employees and employers;
●● the support employers may gain by following the law;
●● the way in which employers may keep up to date with both statute and
case law.

Protecting employees
We have already explained that employment law has a social justice role and
that law exists essentially to maintain justice and to protect the weaker
party, the employee. Since 1997, when the Labour Government was elected,
there has been an increase in statutory employment rights, which though
amended has not been wholly reversed by the subsequent governments.
Employers’ resistance to this change is also understandable as we have
moved from a voluntarist to a legal approach to the employment ­relationship.
Employers can accept the increased legislation surrounding health and
30 FUNDAMENTALS

safety but find it challenging to see a similar or even more extreme change
to the moderation of the employment relationship, which has been in their
sphere of control. However, these rights have some logical foundation which
makes it easier for us as HR professionals to advise employers on their
responsibilities. Examples of these rights are as follows (these are the
primary employment rights but are not exclusive):

●● work–life balance rights;

●● discrimination rights;
●● contractual rights;
●● dismissal rights.

It is important to mention that, despite focusing on protecting employees

and their rights, employees do also have responsibilities and duties towards
their employers and examples of these implied duties are:

●● to be obedient;
●● to work in good faith;
●● to adapt to new working methods;
●● to use reasonable care and skill;
●● to maintain confidentiality.

Work–life balance rights

Work–life balance rights provide employees with the ability to manage
modern living. Most families are two wage earners in one guise or another.
According to the OECD (2017) dual earners are most common in all
European countries, a fairly radical change in this generation.

TABLE 2.1 Long working hours: a comparison

Employees working long Time devoted to personal care

hours (%) and leisure (hours)

OECD average 11 15
Norway 2.9 15.6

USA 11.1 14.4

UK 12.2 14.9

Mexico 28.7 12.4

SOURCE OECD (2021)
 THE IMPORTANCE OF EMPLOYMENT LAW 31

TABLE 2.2 Work–life balance rights with relevant legislation

Right Relevant legislation

Regulation of employment National Minimum Wage Act 1998

wages and hours Working Time Regulations 1998

Maternity, paternity, and A range of legislation including:

adoption pay and leave Social Security Contributions and Benefits Act 1992
rights Employment Relations Act 1999
Maternity and Parental Leave etc. Regulations 1999
Shared Parental Leave Regulations 2014

Flexible working rights Employment Act 2002

Work and Families Act 2006

Time off for dependants Employment Relations Act 1999

Parental bereavement Parental Bereavement (Leave and Pay) Act 2018

According to OECD (2021), the average percentage of people working long

hours is 11 per cent, long hours being 50 hours or more each week
(Table 2.1). When we compare country against country we can see that
those in the UK and USA have almost an average number of people working
long hours. In fact Mexico is in the top bracket.
Overall men more than women tend to work long hours: 15 per cent of
men compared to 6 per cent of women. This may be related to the gender
imbalance of job roles or the fact that home responsibilities, including care,
tend to be held by women.
In fact the Covid-19 pandemic has emphasized previous imbalances, as
prior to the pandemic, on average, women spent 62 hours per week caring
for children (compared to 36 hours for men) and 23 hours per week doing
housework (15 hours for men). Certainly post-Covid it is likely that home
working will remain more common, as employees have already experienced
some of the benefits.
So the law needs to reconcile the changing needs of working families in
the culture that they are based.
We apply this law in the UK when we receive and respond to flexible
working requests on behalf of the employer. The UK work–life balance
rights are as shown in Table 2.2.
Flexible working is covered in more detail in Chapters 4 and 6.
32 FUNDAMENTALS

Discrimination rights
The UK has a history of ethnic diversity and this has increased in the
twenty-first century: net annual migration has generally been between
­
200,000 and 300,000 since 2002 but increased to 313,000 for the year to
March 2020 (ONS, 2020a). This increase seems to be driven by non-EU
students from China and India. This figure is pre-pandemic and does ‘not
take account of the significant impact that Covid-19 has on international
migration’. This describes a movement of citizens, with a diversity of
languages, values, backgrounds and religious affiliations. Add to this the
speed of change and the concentration of different races in various loca-
tions, and this may lead to difficulties of social integration. It is from this
picture of society that our employees are drawn.
We also see a society with an increase of older people, with 12 million
people over 65 in the UK in 2019 (ONS, 2020b). By 2028, 12.8 million will be
over pensionable age (67) and by 2043 there will be 15.9 million over 67
(ONS, 2019). This both puts pressure on working-age employees (as their tax
goes towards pensions) and the Government to finance support for the elderly,
but more relevant to our discussion is the increase of older people in the work-
force. The default retirement age has been removed, which means that
employees no longer leave work at 65, but are free to work as long as they
wish and are physically able to. According to the Pensions Act 2007, the State
retirement Pension has been moving towards the age of 68 for those retiring in
2046, which means that older people wishing to leave work before their State
Pension starts will need an appropriate private pension or savings to enable
them to retire. This image of an older population is mirrored across most other
European countries, though it is more variable elsewhere (OECD, 2018).

TABLE 2.3 Percentage of population aged over 65 in 2018

Country Percentage

Japan 28.14

Germany 21.47

France 19.84
UK 18.31

Norway 17.09

USA 16.03

Mexico 7.25
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