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Book

Cover Employment Law in Context
Employment Law in Context combines extracts from leading cases, articles, and books with commentary to provide a full critical understanding of employment law. As well as providing a grounding in individual labour law, this title offers detailed analysis of the social, economic, political, and historical context in which employment law operates, drawing attention to key and current areas of debate. An innovative running case study contextualizes employment law and demonstrates its practical applications by following the life-cycle of a company from incorporation, through expansion, to liquidation. Reflection points and further reading suggestions are included. The volume is divided into eight main Parts. The first Part provides an introduction to employment law. The next Part looks at the constitution of employment and personal work contracts. This is followed by Part III, which examines the content of the personal employment contract and the obligations imposed by the common law on employers and employees. The fourth Part is about statutory employment rights. The fifth Part covers equality law. Part VI looks at the common law and statutory regulation of dismissals. The Part that follows considers business reorganizations, consultation, and insolvency. Finally, Part VIII describes collective labour law.

Chapter

Cover Employment Law in Context

3. The Employment Relationship and the Contract of Employment  

This chapter analyses the various tests adopted by the courts and tribunals to distinguish between the contract of employment and the contract for services. It considers the history of employment, moving from a master and servant arrangement to the emergence of the ‘mutual’ or ‘reciprocal’ contract of employment. It considers the statutory concept of continuous employment, whereby an individual may be required under statute to establish a period of continuous employment on the basis of a contract of employment in order to avail him/herself of certain statutory employment protection rights. Finally, the chapter turns to the effect of an illegal contract of employment, whether it was illegal in its purpose or objective when it was formed, or expressly or implicitly prohibited by statute. There is also consideration of the illegal performance of a legal contract.

Chapter

Cover Employment Law in Context

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

Cover Employment Law

8. Implied terms  

This chapter looks at the terms which are implied into contracts of employment. Implied terms are those that are deemed to be present by a court despite never having been explicitly agreed or even discussed by the employer or employee. The chapter begins by setting out the different types of implied term, differentiating these from other types of terms, before going on to explore the major implied terms and their significance. It focuses in particular on the duty to maintain a relationship of mutual trust and confidence as this is the area in which the most significant legal developments have occurred. It then considers situations in which implied terms conflict with express terms, before discussing procedural issues in breach of contract cases.

Chapter

Cover Employment Law in Context

6. The Implied Terms of the Personal Employment Contract  

This chapter first discusses the role played by implied terms of the employment contract. It then turns to the implied terms which impose obligations on the employer. These include the duty to provide work, pay wages, exercise reasonable care for the physical and psychiatric well-being of the employee; the implied term of mutual trust and confidence; and the discretionary benefit implied term and anti-avoidance implied term. The final section covers the implied terms imposing duties on employees. These include the duty to work and obey instructions and orders; the duty to adapt, exercise care, and co-operate; the duty of mutual trust and confidence; and the duty of loyalty, fidelity, and confidence.

Chapter

Cover Selwyn's Law of Employment

16. Wrongful Dismissal  

Under the law which existed prior to 1971, an employer was entitled to dismiss an employee for any reason or no reason at all. In 1971 the Industrial Relations Act created the right for many employees not to be unfairly dismissed, and though that Act was repealed, the relevant provisions were substantially re-enacted in the Trade Union and Labour Relations Act 1974, and further changes were made by the Employment Protection Act 1975. The Employment Rights Act 1996 (as amended) contains most of the relevant statutory provisions currently in force. This chapter discusses the ways in which wrongful dismissal may occur, collateral contracts, summary dismissal, and employment law remedies.

Chapter

Cover Employment Law

7. Contractual employment rights  

This chapter introduces the basic principles of the law of contract as they apply to contracts of employment. It focuses on three issues in particular. First we look at how contracts are formed in the context of an employment relationship and at the conditions that need to be in place if a contract of employment is to be enforceable in a court. We then go on to discuss how employers can go about lawfully varying the terms of contracts by using flexibility clauses and other approaches. Finally we discuss the need to provide employees with written particulars of their employment soon after they start working in a new job.

Chapter

Cover Concentrate Questions and Answers Employment Law

4. Termination of the contract of employment  

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 termination of the contract of employment. Through a mixture of problem questions and essays, students are guided through some of the key issues on the topic of termination of the employment contract including the different ways a contract may be terminated, the meaning of dismissal, the right to reasonable notice, and wrongful dismissal. 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

Cover Smith & Wood's Employment Law

3. Contracts of employment (2): content and wages  

This chapter explores where express terms come from, especially if they are not all neatly set out in writing, and then goes on to consider how terms become implied. Here, several significant differences between ordinary commercial contracts and employment contracts will be seen, both in the scale of the use of implied terms in employment law to ‘perfect’ the bargain and in the sheer strength of some of these frequently implied terms that can, in practice, be just as important as express terms. Having looked at where these terms come from, the chapter goes on to consider the principal duties that they impose on employers and employees, some of which are old and obvious, such as the employer’s duty to pay wages and the employee’s duty of obedience to lawful orders. On the other hand, some are more recent and more at the cutting edge of modern employment law, such as the implied term of trust and confidence for the employee and the topical controversies over confidentiality at work in an age of electronic communication and social media. The chapter concludes by considering specifically the law on wages, including the statutory requirements of paying the national minimum wage and the national living wage.

Chapter

Cover Smith & Wood's Employment Law

3. Contracts of employment (2): content and wages  

Ian Smith, Owen Warnock, and Gemma Mitchell

This chapter explores where express terms come from, especially if they are not all neatly set out in writing, and then goes on to consider how terms become implied. Here, several significant differences between ordinary commercial contracts and employment contracts will be seen, both in the scale of the use of implied terms in employment law to ‘perfect’ the bargain and in the sheer strength of some of these frequently implied terms that can, in practice, be just as important as express terms. Having looked at where these terms come from, the chapter goes on to consider the principal duties that they impose on employers and employees, some of which are old and obvious, such as the employer’s duty to pay wages and the employee’s duty of obedience to lawful orders. On the other hand, some are more recent and more at the cutting edge of modern employment law, such as the implied term of trust and confidence for the employee and the topical controversies over confidentiality at work in an age of electronic communication and social media. The chapter concludes by considering specifically the law on wages, including the statutory requirements of paying the national minimum wage and the national living wage.

Chapter

Cover Selwyn's Law of Employment

19. Duties of Ex-employees  

This chapter considers the duties of ex-employees, ie the obligations which apply to an employee who is about to leave his employment (whether voluntarily or otherwise), or who has actually left that employment. The law must strike a delicate balance. On the one hand, an employee has a right to earn his living, and knowledge and skills obtained in his former employment will doubtless enable him to continue to do so; on the other hand, an employer is entitled to limited protection against an employee who may well be seeking to compete. It includes garden leave, trade secrets and confidential information, restraint of trade, and working for competitors.

Chapter

Cover Employment Law in Context

19. Transfers of Undertakings  

This chapter examines the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). It first assesses the legal position prior to the introduction of the European Acquired Rights Directive 2001, which is the source of TUPE. It then analyses the principal implications of TUPE and its provisions. It considers the circumstances when TUPE will apply and the extent to which TUPE has been interpreted progressively to include economic transactions and arrangements which transcend the transfer of an organization’s business and assets. The chapter also examines the impact of TUPE on the contract of employment, and discusses the information and consultation obligations imposed on transferors.

Chapter

Cover Smith & Wood's Employment Law

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

Cover Smith & Wood's Employment Law

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.

Chapter

Cover Selwyn's Law of Employment

10. Performance of the Contract of Employment  

This chapter begins with a discussion of the personal nature of the employment contract, and the fact that such a contract is necessarily one of personal service which gives rise to duties and obligations on both sides. It deals with issues such as the implied duties of the employer to provide for the employee (including the implied duty to provide work, pay wages, confidentiality, and the implied duty of trust and confidence), and the corresponding implied obligations of the employee (including the duty of faithful service, duty to use skill and care). There is also a discussion of whistleblowing and public interest disclosures. It then explains employer’s vicarious liability, and harassment and bullying.

Chapter

Cover Selwyn's Law of Employment

17. Unfair Dismissal  

The statutory provisions relating to unfair dismissal are found in ss 94–107 of the Employment Rights Act 1996. This chapter looks at what amounts to a dismissal and the ways in which a dismissal may take place, covering expiry of a fixed-term contract, resignation and constructive dismissal, and frustration of the contract. It also discusses the categories of employees which are not protected by the unfair dismissal provisions of ERA; the termination of the contract; fair and unfair dismissal; fair reasons for dismissal and some other substantial reason; written reasons for dismissal; and remedies for unfair dismissal such as reinstatement, re-engagement, and compensation, as well as showing how such compensation is to be calculated.

Chapter

Cover Selwyn's Law of Employment

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

Cover Employment Law in Context

15. Wrongful Dismissal  

This chapter examines the legal consequences where an employer lawfully or unlawfully terminates the contract of employment. It considers the competing elective theory of termination and automatic theory of termination, along with statutory intervention in the form of minimum periods of notice set out in section 86 of the Employment Rights Act 1996. Stress is placed on the importance of using the correct terminology in this area of the law and bilateral, unilateral, and non-lateral terminations are defined. Further discussion covers suspension of contract and the conduct of disciplinary hearings. Finally, the remedies available to employees in the case of a wrongful dismissal are addressed, including the circumstances in which a claim for damages is likely to be successful.

Chapter

Cover Employment Law

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

Cover Selwyn's Law of Employment

3. The Formation of a Contract of Employment  

This chapter discusses how an employment contract is formed, and it then looks at the terms and conditions of employment and how these terms are to be interpreted. The types of terms discussed include express terms, implied terms, statutory terms, collective agreements and how such collective terms are incorporated, and looks at custom as a source of employment terms and works and staff rules. The chapter also considers other aspects of the contract of employment such as disciplinary and grievance procedures, job descriptions, written particulars of the contract of employment, the right to itemised pay statements, variation of contractual terms, and an overview of occupational pension schemes.