Employment Law 2020

Phillips

Sujets

• Droit et juridique

Informations

• Publié par: College of Law Publishing
• Date de parution: 01 janvier 0001
• Nombre de lectures: 0
• EAN13: 9781913226404
• Langue: English

Extrait

EMPLOYMENT LAW

Published by
College of Law Publishing,
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The University of Law 2020
Gillian Phillips and Karen Scott have asserted their moral rights in accordance with ss 77– 80 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher.
Crown copyright material is licensed under the Open Government Licence v3.0.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 913226 28 2 EISBN 978 1 913226 40 4
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Tables and index by Moira Greenhalgh, Arnside, Cumbria
Preface
This book has been written primarily for students of the Employment Law and Practice elective on the Legal Practice Course. It covers a number of important areas of individual employment law, although it does not deal with trade union law or collective agreements.
For the sake of brevity, the masculine pronoun is used to include the feminine.
The law is stated as at 1 October 2019, although some later developments have been referred to where possible.
We express our thanks to the many previous authors and contributors to this book. In particular, we would like to thank Peter Rumbelow, for all his sterling efforts over the years. We would also like to express our thanks to Elizabeth Ajagbe, Jo Bingham, Sarah Brown, David Capron, Penny Hayhurst, Stuart Roberts, Christine Taylor, Christine Pashley and the rest of the Employment Law team at the University of Law for their comments on the previous editions of this book. Though we benefitted enormously from their advice, all errors are strictly of our own making. Thanks too to John Moore, formerly of Bevan Brittan LLP.
Thanks as always to David Stott for his help and guidance.
GILLIAN PHILLIPS
KAREN SCOTT
Contents
PREFACE
TABLE OF CASES
TABLE OF STATUTES
TABLE OF SECONDARY LEGISLATION AND CODES OF PRACTICE
INTRODUCTORY NOTE
TABLE OF ABBREVIATIONS
Chapter 1 THE CONTRACT OF EMPLOYMENT
1.1 Introduction
1.2 Background
1.3 The relationship of employer and employee
1.4 The contract of employment
1.5 Implied terms
1.6 Terms implied by statute
1.7 Terms implied by common law
1.8 Written contracts
1.9 Variation of contractual terms
1.10 Human Rights Act 1998
1.11 Protection of wages
1.12 Working Time Regulations 1998
1.13 Checklists
1.14 Further reading
Summary
Chapter 2 TERMINATION OF THE CONTRACT OF EMPLOYMENT – WRONGFUL DISMISSAL
2.1 Introduction
2.2 Wrongful dismissal (dismissal in breach of contract)
2.3 Termination of contract
2.4 Employee’s remedies for wrongful dismissal
2.5 Employer’s remedies
2.6 Checklist
2.7 Further reading
Summary
Chapter 3 DISMISSAL – ELIGIBILITY TO PRESENT A STATUTORY CLAIM
3.1 Introduction
3.2 Eligibility factors
3.3 Employees only
3.4 Dismissal
3.5 Continuous employment
3.6 Excluded classes
3.7 Jurisdiction
3.8 Contracting out
3.9 Further reading
Summary
Chapter 4 REDUNDANCY
4.1 Introduction
4.2 Definition of redundancy
4.3 Presumption of redundancy
4.4 Offers of re-employment
4.5 Change of employer
4.6 Computation of the statutory redundancy payment
4.7 Enforcement
4.8 Consultation
4.9 Case study: redundancy payment, unpaid notice and holiday pay
4.10 Further reading
Summary
Chapter 5 UNFAIR DISMISSAL
5.1 Introduction
5.2 Reasons for dismissal
5.3 Fairness of dismissal
5.4 Procedural unfairness
5.5 Other special cases
5.6 Awards for unfair dismissal
5.7 Penalties for employers
5.8 Case study 1: unfair dismissal, redundancy payment and unpaid wages
5.9 Case study 2: unfair dismissal
5.10 Further reading
Summary
Chapter 6 PRACTICE AND PROCEDURE, SETTLEMENTS AND OVERLAPPING CLAIMS
6.1 Introduction
6.2 Applications to the employment tribunal
6.3 Time-limits in employment tribunals
6.4 Tribunal Rules
6.5 Settlements
6.6 Alternatives to tribunal proceedings
6.7 Overlapping claims and awards
6.8 Case study: unfair dismissal
6.9 Further reading
Summary
Chapter 7 TRANSFER OF UNDERTAKINGS
7.1 Introduction
7.2 When do the 2006 Regulations apply?
7.3 Effect of a relevant transfer
7.4 What the transferee acquires
7.5 Dismissal of an employee because of a relevant transfer
7.6 Post-transfer variations to terms and conditions
7.7 The provision of information and consultation under the 2006 Regulations
7.8 Further reading
Summary
Chapter 8 DISCRIMINATION AND EQUAL PAY
8.1 Introduction
8.2 Protected characteristics
8.3 Prohibited conduct
8.4 Unlawful acts of discrimination – in the employment field
8.5 Occupational requirements
8.6 Vicarious liability
8.7 Retirement
8.8 Enforcement and remedies
8.9 Equal pay and the equality clause
8.10 Part-time workers
8.11 Fixed-term employees
8.12 Trade union membership or activities
8.13 Discrimination under the Human Rights Act 1998
8.14 Further reading
Summary
Chapter 9 DIRECT DISCRIMINATION
9.1 Introduction
9.2 Direct discrimination
9.3 Gender reassignment and absence from work
9.4 Pregnancy and maternity discrimination
9.5 Burden of proof
9.6 Remedies
9.7 Case study: direct race discrimination claim – burden of proof
Summary
Chapter 10 INDIRECT DISCRIMINATION
10.1 Introduction
10.2 Indirect discrimination
10.3 Burden of proof
10.4 Remedies
Summary
Chapter 11 HARASSMENT AND VICTIMISATION
11.1 Introduction
11.2 Burden of proof
11.3 Harassment
11.4 Remedies for harassment
11.5 Employers’ liability for the acts of employees
11.6 Employers’ liability for the acts of third parties
11.7 Protection from Harassment Act 1997
11.8 Case study: harassment
11.9 Victimisation
Summary
Chapter 12 AGE DISCRIMINATION
12.1 Introduction
12.2 The protected characteristic
12.3 Prohibited conduct
12.4 Unlawful acts of discrimination
12.5 Occupational requirements
12.6 Direct discrimination
12.7 Indirect discrimination
12.8 Harassment and victimisation
12.9 Exceptions
12.10 Vicarious liability
12.11 Burden of proof
12.12 Practical considerations
12.13 Enforcement and remedies
12.14 Further reading
Summary
Chapter 13 DISABILITY DISCRIMINATION
13.1 Introduction
13.2 The protected characteristic
13.3 The meaning of ‘disability’ and ‘disabled person’
13.4 Unlawful discrimination in employment
13.5 Types of discrimination
13.6 Burden of proof
13.7 Vicarious liability
13.8 Enforcement and remedies
Summary
Chapter 14 FAMILY-FRIENDLY RIGHTS AND THE RIGHT TO REQUEST FLEXIBLE WORKING
14.1 Introduction
14.2 Maternity leave
14.3 Ordinary and additional maternity leave
14.4 Compulsory maternity leave
14.5 Redundancy during maternity leave
14.6 Protection from detriment short of dismissal
14.7 Automatically unfair dismissal
14.8 Remedies for unfair dismissal
14.9 Redundancy payments
14.10 Wrongful dismissal
14.11 Pregnancy/maternity discrimination
14.12 Other maternity-related rights
14.13 Adoption leave
14.14 Paternity leave
14.15 Parental leave
14.16 Shared parental leave
14.17 Right to request flexible working
14.18 Time off to care for dependants
14.19 Parental bereavement leave
14.20 Further reading
Summary
Chapter 15 HUMAN RIGHTS, MONITORING AND DATA PROTECTION
15.1 Human Rights Act 1998 – introduction
15.2 The scheme of the Human Rights Act 1998
15.3 Key definitions
15.4 Relevant Convention rights
15.5 Data protection
15.6 Monitoring in the workplace
15.7 Further reading
Summary
Appendix 1 STATEMENT OF TERMS AND SERVICE CONTRACT EXAMPLES
Appendix 2 CASE STUDY
Appendix 3 PRESIDENTIAL GUIDANCE – GENERAL CASE MANAGEMENT
INDEX
Table of Cases
A A and B v X, Y and Times Newspapers Ltd (EAT/0113/18) 243 A Fereday v South Staffordshire NHS Primary Care Trust (UKEAT/0513/10) 112 A Ltd v Z (UKEAT/0273/18) 467 A v B [2003] IRLR 405 173 A v Chief Constable of West Midlands Police (UKEAT/0313/14) 421 A v Secretary of State for Justice [2019] IRLR 108 244 AA Solicitors Ltd (t/a AA Solicitors) & Another v Majid (EAT/0217/15) 354 , 412 Abadeh v British Telecommunications plc [2001] IRLR 23 446 , 448 Abbey Cars (West Horndon) Ltd v Ford (UKEAT/0472/07) 111 Abbey National plc v Robinson [2000] All ER (D) 1884 111 Abellio London Ltd (Formerly Travel London Ltd) v Musse and Others [2012] IRLR 360 (EAT) 305 Abercrombie & Fitch Italia Srl v Bordonaro [2017] IRLR 1018 430 Aberdeen City Council v McNeill [2014] IRLR 114 113 Abernethy v Mott, Hay and Anderson [1974] ICR 323, CA 147 Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 226 , 351 , 461 ABM University Local Health Board v Morgan (UKEAT/0305/13) 351 Abrahall v Nottingham City Council [2018] EWCA Civ 796 40 , 112 Abrahams v Performing Rights Society Ltd [1995] IRLR 486 90 Achbita v G4S Secure Solutions (Case C-157/15) 372 Adams v BT plc (EAT/0342/15) 221 , 224 Addison Lee Ltd v Gascoigne (UKEAT/0289/17) 20 Aderemi v London and South Eastern Railway Ltd (UKEAT/0316/12) 444 , 445 Adeshina v St George’s University Hospitals NHS Foundation Trust and Others (UKEAT/0293/14) 170 , 171 Adesokan v Sainsbury’s Supermarkets Ltd [2017] EWCA Civ 22 91 Adjei-Frempong v Howard Frank Ltd (EAT/0044/15) 112 Afzal v East London Pizza Ltd (UKEAT/0265/17) 170 Agarwal v Cardiff University [2018] EWCA Civ 1434 64 Age Concern England Case C-388/07 [2009] ICR 1080 431 Ahmad v UK (1982) 4 EHRR 126 61 , 365 Ahmed v The Cardinal Hume Academies (UKEAT/0196/18) 412 Air Products PLC v Cockram [2018] EWCA Civ 346 430 Airbus UK Ltd v Webb (UKEAT/0453/06); [2008] IRLR 309 165 Airey v Irel