First class Labour (employment) law notes, last updated for Law exams at the University of Cambridge in 2019.
These notes are concise & colourful. I have distilled the key principles for the main cases to make revision easier, especially for problem questions. The notes also cover key academic c...
TABLE OF CONTENTS
KEY STRUCTURES: P.2
SOURCES & SCOPE : P.3
CONTRACT OF EMPLOYMENT : P.13
WRONGFUL DISMISSAL: P.22
UNFAIR DISMISSAL: P.28
ECONOMIC RESTRUCTURING, REDUNDANCY & TUPE : P.40
COLLECTIVE LABOUR LAW P.55
INDUSTRIAL ACTION P.66
DISCRIMINATION
Page ! 1 of !93
,LABOUR NOTES KEY STRUCTURES
KEY STATUTE PAGES DISCRIMINATION
ERA: 119 a) Personal scope: e.g job applicant not offered employment (s.39(1)(c)
•
TUPE: 366 b)Who is liable
•
• EqA: 245 c) Direct or indirect discrim
• TULRCA: 5 1) Direct Discrimination - s.13 EqA 10
• i) less fav treatment than C ii) on ground of PC iii) detriment suffered
DISMISSAL 2) Indirect Discrimination - s.19 EqA 10
• i) PCP ii) which applies/would apply equally to X iii) but which puts Y at partic
1) Wrongful Dismissal disadvantage when compared to X (here select a pool) iv) Is there a justification?
ii) Dismissal without notice? d) Remedies
iii)Breach of any express/implied terms i.e MTC?
2) Unfair Dismissal ————-
i) Personal scope - EE (s.94(1) ERA) & qualifying service of 2y - s.108(1) ERA 3) Equal Pay:
ii) Was there a dismissal? s.95(1)(a) i) EE - (83(2) ERA)
iii) Reason unfair? s.98(1)(a)? ii) Is there a pay case?
iv)Was the dismissal reasonable? iii)Is there a comparator (not straightforward)
• Asks whether ER acted reasonably in treating as sufficient the reason which was iv)Is the comparator employed in the same employment? (79(3))
basis for dismissal - s.98(4) ERA v) Is the situation covered by s.65?
• Two components: a) substantively fair actual decision - RRT b) procedurally fair vi)What is the factor relied on? Is it material? If yes, C loses, if no C, wins &
v) Compensation? equality clause applies
• There is a basic award calculated acc length of service/age - s.119(1-2) ERA vii)Is there a defence?
• Note can get 25% increase on award for non-compliance with procedures as TUPE
tribunal consider just & eq in circs -124A ERA
1) Personal scope - Reg 2 TUPE
INDUSTRIAL ACTION 2) SPC or Transfer? Reg 3 TUPE
• Start with SPC (broader)
1) Likely torts committed via industrial action? • Reg 3(1)(b) contracting out, subcontracting or bringing back in-house
2) Is union liable • Reg 3(3) compliance: break into (i) organised grouping (ii) principal purpose (iii)
a) Under stat provision of s.20 or under CL vicarious liability not exceptions in 3(3)(a)(ii)
3) Is union immune from liability (3 elements accumulative) • If these don’t apply look to transfer of undertakings
a) Is the tort within s.219 • Reg 3(3)(1)(a) looking at idea of (i) eon entity retaining identity (ii) post transfer
b) Is there a trade dispute within s.244 - Spjikers factors
c) Is IA in contemplation or furtherance of that trade dispute? • If yes…set out effect of transfer!
4) Has immunity been lost? • Reg 4(1) & 4(3) auto novation of contract for EEs
a) Picketing outside s.220 • unless no consent Reg (4)(9)
b) Secondary action under s224 • maybe try redundancy if EE can’t establish dismissed in these circs
c) Action for prohibited reasons: s.222, 223, 225 • but note Reg 4(10) - no claim for notice and so WD
d) Failure meet notification & balloting requirements: s.226-234 3) Variations
5) What remedies are available against the union?
Page 2! of !93
,LABOUR NOTES
• Reg 4(4) purported variations where sole reason is transfer void, unless ETOR/
terms of contract allow (Reg 4(5))
• For CAs changing - must establish both Reg 45A & 45B
• Reg 4(9) - if not satisfied with substantial changes allows go to dismissal claim
4) Dismissal - Reg 7 TUPE
• Reg 7(1) sole/principal reason transfer -> auto unfair, whether before/after
• Reg 7(2) ETOR entailing changes not unfair but can be treated as redundancy
or SOSR
• then segue into UD
• Reg 7(3)(b) is regarded as for redundancy if 98(2)(c)
5) Info & Consultation - Reg 13 TUPE
• Reg 11 & 13 remember separate award to any UD compensation
REDUNDANCY
• Elements of being dismissed as redundant…
1) Employee
2) Satisfying qualifying period (s155)
3) Dismissed (s136 includes expiry of FT contract & CD)
4) For reasons wholly or mainly attributable to (s139(1))
5) Redundancy (s139(1)(a + b))
6) With no offer of suitable alternative employment (s138)
7) And EE is not excluded (ss140-143)
• Note may come into UD - 98(2)(c) ERA but PFR so won’t necessarily get UD
£ - look at substance/procedure
• Note info/consultation requirements
• Note collective redundancies - s.188 TULRCA
Page 3! of !93
,LABOUR NOTES
S1: SOURCES & SCOPE
NATURE & SCOPE OF LABOUR LAW (LL) • Note: fundamental principle collective agreements presumed not legally
i) SUBJECT MATTER binding unless parties expressly provided otherwise (179 TULRCA 92)
• Labour law: law governing work relationship/employment contract • but courts will incorporate into individual contracts of employment
• Core is exchange of work for wage b) Common law: ‘cornerstone’ of labour law
• Distinction between individual & collective labour law - individual become c) Legislation: has played increasing role
more important - define in TUs, more flexible labour market • Much of modern labour legislation found in 3 statutes:
• Increasingly shaped by EU law/HR • Trade Union & Labour Relations Act 92 - (TULRA)
• Lord Clarke Autoclenze: law recognises fundamental inequality of bargaining • Employment Rights Act 1996 - ERA
power - tries to remedy/protect weaker party • Equality Act 2010 - EqA
• but tension between this idea/general principles of Eng contract law • Others take effect largely through amendments to TULRCA/ERA
• Hepple: law stems from idea of ‘subordination of individual W to capitalist • No. of measures implementing EC standards have been separately enacted
enterprise’ e.g TUPE 06
• dependent labour, hierarchical relationship - hence unequal • Can distinguish auxiliary legislation e.g right form TU/stat immunities: P2
ii) INTELLECTUAL INFLUENCES TULRCA 92, right to strike Part V etc
a. Social or industrial pluralism: idea priv law definition of employment (i.e • Regulatory legislation e.g NMWA 98, Working Time Regs 98
contract) masked social reality - inequality. • Codes of practice ‘secondary legislation’ e.g on Picketing
• Idea is legal/collective intervention could effect negative socio-economic • here breach not actionable but Codes admissible/must be considered in
effects of this e.g collective bargaining tribunals so significant source
• concrete form in auxiliary & regulatory legislation d) International Labour Standards:
• embodiment of social policy in action - Kahn-Freud brought to UK! • Intl Labour Organisation under UN sets standards, embodied in
b. Managerialist or unitarist perspectives: denies conflict of interest between EE conventions (binding on states once ratified) or recommendations
& ER! CoE as foundation of managerial power & mutual interest of ER and • ILO Dec of Fundamental Principles & Rights @ Work 98 requires MS
workforce recognise the following principles:
c. Market liberalism: says employment no diff to other contracts, role of LL to a) F.o.A & effective recognition of right to collective bargaining
remove market distortions (e.g TU as cartel) b) elimination of forced/compulsory labour
d. Rights-based approach: LL should bring reorientation of indiv’s position in c) abolition of child labour
enterprise & wider labour market - more individualist move - growing trend d) elimination of discrimination re employment/occupation
which doesn’t view labour a commodity - far reaching regulation! • ILO standards not automatically part of UK law - must be put into statute
• fits with increasingly individual nature of labour market (e.g gig economy) (GCHQ)
iii) SOURCES • UK ratified 200+ conventions but in some respects not confirming e.g
a) Collective bargaining: process of negotiation between ERs & TUs strikes
• produce collective agreements • Other UN related sources: UNDHR etc
• but has been a huge shift to individual rights focus • ECHR & European Social Charter 61 ECtHR ruled these 2 should be
• Where ERs recognise TUs, collective agreements are the most significant read complementarily & in line with developments in intl labour law (Demir
source of regulation of terms & Baykara v Turkey)
• but CB now less than 1/3 of the workforce • Ewing & Hendy: maybe far-reaching for UK as A11 effective via HRA
• Only 1/5 private sector workers = union members e) EU law
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, LABOUR NOTES
• Considerable influence • Scope grew & now virtually all employment claims resolved by tribunals -
• Labour law an area of ‘shared competence’ -> EU’s powers limited indiv enforcement!
• Can adopt directives under social polity title of TFEU - substantial body of • Exceptions: breach of contract, PI, NMWA 98, modern slavery
law over time: equality, health/safety, collective redundancies etc • Because ET main way state ensures protection, critical that individuals can
• but minimal in other areas e.g min wage/termination etc - no comprehensive easily bring claims! Public element (often ignored)
EU labour code! • note EA 02 brought focus to early conciliation/ADR to reduce burden on
• Highly contested is clash between econ rights of EU (4 freedoms), tribunals - still are ways of resolving before hearings
competition law & LL at both EU/nat level e.g Lawal v Svenska 08 • 2013 gov introduced fees to finance public service (thought unfair on tax
• Sovereign debt crisis/austerity measures have had impact - memoranda f payer), incentivise early settlement, discourage unreasonable claims etc - like
understanding between EU/ECB have had deregulatory impact & social normal courts
policy effected e.g Euro Plus pact • R(Unison) v Lord Chancellor 17 Newman: ‘biggest single victory in history
• Impact of Brexit? of employment law’
• For now, substantive change negligible - EU (Withdrawal Act 18) keeps in • SC held the Fees Order to be unlawful & void - fees ceased be payable & fees
place paid reimbursed
• David Davies prev suggested law wouldn’t radically change • primarily decided on basis of common law right of access to justice (Roh)
• UK has come expect standards of protection under EU law, so reform e.g on • in lower courts claim was based on EU law principle of effectiveness & Art 6
discrim unlikely (47 EU Charter) - lower court said ppl could afford fees so ok
• Many employment rights not from EU - impact been in limited areas • but SC different approach: emphasis on rule of law & common law right -
• Other areas, UK provides protection above EU minimums e.g maternity Lord Reed
• Perhaps uncertainty re UK law stemming from ECJ - probs applies until • Clear evidence that no. claims down significantly since 13 & survey showed
overruled most Cs interested in compensation/reinstatement rather than merely justice -
• Chartered Institute of Personnel & Development say UK has right thus fees having substantive impact
balance in terms of flexibility & employment protection thus change unlikely • Deakin: saved labour law/employment bar from declining into irrelevance
• Good Work Plan 18 says maintain & enhance workers rights • Adams & Prassl argued in favour - Unison used it - noted 70% down & said
• but perhaps working time regs may change - UK already has opt-outs etc practical impossibility alone insufficient - look at fundamental right - also point
• perhaps TUPE reform? May make more business friendly, away from EU out gov ignored public value of ET
constraints • Reed: also made reference to proportionality etc
• fixed-term EEs could be deregulated if policy of removing red tape • Ford notes that this common law approach signifiant in context of Brexit
• agency workers likely candidate change - unpopular with Brit businesses • also says whereas gov seen tribunal users as participants in a market; SC sees as
• free movement will be biggest change - not so much legal change though exercising a fundamental right
• Ben: generally limited impact cos of EU’s limited competence in this area & • co-ordination of social actions by law (i.e ET enforcement) necessarily
the integration of many EU standards into Eng law - may see change in embodies claims to legitimacy which are not reducible to language of
select area economics
• Short term effects? Ford says Cs denied by fees should be able bring claims by
iii) THE EMPLOYMENT TRIBUNAL SYSTEM extending time limit, arguing it wasn’t ‘reasonably practicable’ to bring a
• First created under Industrial Training Act 64 & RPA 65 marked turn - ET
claim/‘just & equitable’ to extend
system (then called IT) instead of state enforcement as primary means of
• unlikely get Francovich damages - no express provision breached & unlike
delivering labour standard
sufficiently serious
Page 5! of !93
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