This chapter considers the current state and future of commercial law. It starts with how the commercial law of England and Wales is the product of a long process of doctrinal development, by courts and Parliament. The structure of commercial law involves the Sale of Goods Act 1979 (SGA), the death of sales, and a new codification. The chapter also looks into the impact of Brexit and digitalisation on commercial law, which includes the emergence of gig economies, sharing economies, and circular economies. It cites how the radicalness of commercial actors' responses to the digital revolution is slowly being matched by legal thinking.
Chapter
30. Commercial law
Current state, and future directions?
Book
Ian Smith, Aaron Baker, and Owen Warnock
Smith & Wood’s Employment Law draws on the extensive teaching and practical experience of its authors to provide students with a clear explanation of essential legislation and case detail while also offering incisive academic commentary and critical detail to help with essay preparation and class work. Throughout the book, topics are carefully explained in their social and historical context, providing readers with an insight into the fast-paced development of employment law and offering perceptive analysis of its future direction. This fifteenth edition has been produced against the background of the 2019 election, the ensuing coronavirus crisis, and of course the largest elephant in the room: the continuing uncertainties of the details of our departure from the EU. Where appropriate it contains speculation as to possible effects. At the opposite end of the spectrum, this edition also contains the up-to-date case law on detailed employment law developments that continue in spite of such macro matters, for example in relation to the extent to which workers and unions have legal protection in cases involving what is generally referred to as the ‘gig economy’. In particular, the chapters on discrimination in employment, work–life balance and redundancy/reorganization and business transfers have been subject to substantial rewriting. Finally, the changes to the style and layout of the book adopted in the last two editions have been maintained and expanded upon by the addition of a ‘Context’ section at the beginning of each chapter, in order to aid accessibility for the reader, given the ever-increasing complexity of the law itself here.
Book
Ian Smith and Owen Warnock
Smith & Wood’s Employment Law draws on the extensive teaching and practical experience of its authors to provide students with a clear explanation of essential legislation and case detail while also offering incisive academic commentary and critical detail to help with essay preparation and class work. Throughout the book, topics are carefully explained in their social and historical context, providing readers with an insight into the fast-paced development of employment law and offering perceptive analysis of its future direction. This sixteenth edition has been produced against the background of the political instability of 2022, after coming out of the Covid crisis, and of course the largest elephant in the room, the uncertainties still of the overall employment law effects of our departure from the EU. Where appropriate it contains speculation as to possible effects. At the opposite end of the spectrum, this edition also contains the up-to-date case law on detailed employment law developments that continue in spite of such macro matters, for example in relation to the extent to which workers and unions have legal protection in cases involving what is generally referred to as the ‘gig economy’. In particular, the chapters on discrimination in employment, work–life balance, and redundancy/reorganization and business transfers have been subject to substantial rewriting. Finally, the changes to the style and layout of the book adopted in the last three editions have been maintained and expanded upon by the addition of a ‘Context’ section at the beginning of each chapter, in order to aid accessibility for the reader, given the ever-increasing complexity of the law itself here.
Chapter
1. Employment status
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the concept of employment status. Topics covered include the reasons for distinguishing employees from other types of worker; statutory definitions of employee and worker; and the courts’ and tribunals’ approach to identifying employees. The tests for employment status are stated, concentrating on mutuality of obligations and personal service. Discussion centres on zero hours contracts, agency workers, and the gig economy.
Chapter
2. The Nature of a Contract of Employment
This chapter discusses the parties to a contract of employment, the distinction between employees, workers and self-employed persons, and other categories of parties to a contract of employment, looking at the different types of employment status and the tests used to decide which category a person falls into. It includes the status of directors, partners, office holders, ministers of religion, and the police, as well as apprentices, posted workers, domestic servants, and those working abroad and in offshore employment. It also looks at employee shareholders and has a discussion of whether people working in the ‘gig economy’ are workers or employees. Further, the chapter looks at those on fixed-term contracts and agency workers. It also summarises the new IR35 regime and looks at modern slavery.
Chapter
2. Employment status
The Q&A series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions about employment status. Through a mixture of problem questions and essays, students are guided through some of the key issues on the topic of employment status including definitions of employee and worker, the common law tests for determining whether a contract of employment exists, and discussion on the changing nature of the labour market including the gig economy. Students are also introduced to the current key debates in the area and provided with suggestions for additional reading for those who want to take things further.
Chapter
3. Barriers to employment rights
UK employment law does not give equal protection to everyone considered to be working for an employer. In fact, a substantial minority of people who work for private firms, companies and public sector organisations do not enjoy the protection of employment law in some significant respects. There are four types of situation that often deny people the opportunity to bring their claims to court: when a claimant is not considered to be an employee; when a claimant is not considered to be a worker; when a claimant (who is an employee) has not completed sufficient continuous service with their employer; and when a claimant is found not to be working legally in the UK. In addition, employment tribunals operate strict limits on how soon after someone is dismissed or suffers from an instance of unlawful discrimination they make a claim if they want it to be heard. For most tribunal jurisdictions this time limit is set at three months, meaning that after this period has passed a claim cannot be considered because it is ‘out of time’. In practice this rule can also act as a fifth type of barrier preventing people from accessing their employment rights. This chapter focuses on these five types of situations.
Chapter
4. Alternative Personal Work Contracts and Relations
This chapter first examines the two statutory constructs occupying an intermediate position between the employment contract and contract for services that have been formulated by the UK Parliament as a repository for the conferral of certain statutory employment rights. These two statutorily recognized personal work contracts—the ‘worker’ contract and the ‘contract personally to do work’—are intermediate contract types, lying somewhere between the contract of employment and the contract for services. The discussion here is situated within the context of the controversy surrounding the growing numbers of atypical working contracts, such as contracts entered into by ‘gig economy’ workers, ‘zero-hours’ workers, casual workers, etc. The chapter then turns to address the legal status of agency workers. It examines whether the Agency Workers Regulations 2010 address the disadvantages experienced by this section of the UK workforce.
Chapter
2. Contracts of employment (1): status, formation, continuity, and change
This chapter discusses the way in which the law has had to keep up with changing models of ‘employment’. Even the old ‘employee/self-employed’ division is now complicated by increasing use in modern statutes of the term ‘worker’. Part-time, fixed-term, and agency workers have featured prominently in modern employment law and consideration is given to these specifically, along with even more topical areas of concern such as zero-hour contracts and the challenges of the ‘gig economy’ more generally. Three more technical areas are then considered. The first concerns the ‘section 1 statement’ of basic terms and conditions that has been an obligation on employers since 1963 but is still not always given. The second concerns the difficult question of the extent to which an employer can seek to impose limitations on an employee even after employment ends. The third concerns the whole question of how the terms of an employment contract can lawfully be changed by one or both of the parties to it.
Chapter
2. Contracts of employment (1): status, formation, continuity, and change
Ian Smith, Owen Warnock, and Gemma Mitchell
This chapter discusses the way in which the law has had to keep up with changing models of ‘employment’. Even the old ‘employee/self-employed’ division is now complicated by increasing use in modern statutes of the term ‘worker’. Part-time, fixed-term, and agency workers have featured prominently in modern employment law and consideration is given to these specifically, along with even more topical areas of concern such as zero-hour contracts and the challenges of the ‘gig economy’ more generally. Three more technical areas are then considered. The first concerns the ‘section 1 statement’ of basic terms and conditions that has been an obligation on employers since 1963 but is still not always given. The second concerns the difficult question of the extent to which an employer can seek to impose limitations on an employee even after employment ends. The third concerns the whole question of how the terms of an employment contract can lawfully be changed by one or both of the parties to it.
