Employment Law As An Umbrella Term For The Various Areas Of Common Law And Statutory Law

‘Employment Law may be thought of as an umbrella term for the various areas of common law and statutory law that may affect the worker.’

Introduction

Employment law is all about the legislation regarding common and statutory law affecting employees, it concerns the relationship between an employee and its employer but also inter-relations within groups of employees for this reason it can be divided into individual and collective. (Westlaw,2019).

Since all UK employees work under a contract of employment with their employer, the common law (particularly the law of contract, which is defined by the Employment Rights Act 1996, section 230 as “contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”.) forms the legal basis of the employer/employee relationship.

This contract is a legal agreement consisting of a mixture of express or implied terms. The term employer is described by the Employment Rights Act 1996 as “an individual who has entered into or works under a contract of service or apprenticeship”. Under common law, the terms that apply to an employee are called express when they are stated in verbal form and implied if they are incorporated in statutes, agreements, or are too obvious/ required for the contract to be efficient. (CIPD,2020)

An example of the implied term is the implied duty to maintain and preserve trust and confidence outlined in the United Bank v Akhtar [1989] IRLR 507 case. This case was about an employee that had a mobility clause in his contract that could have required him to transfer to any other part of the UK by his employer, he was given a six days’ notice period to relocate to Birmingham. He was refused a three months postponement to make personal arrangements and was unfairly dismissed. If not literally, the terms of the mobility clause implied that reasonable notice of transfer and adequate payment should have been given otherwise it would mean to damage the relationship of mutual trust and confidence. (Westlaw,2020).

Analysis

All UK employees are covered by certain rights that cannot be overridden by any contract agreement, these are statutory rights, which are granted by the Government. These rights automatically apply to employers and employees offering legal protection to both parties. Some examples of statutory laws are:

1. National Minimum Wage:

Employment law covers employees’ rights to be entitled to a National Minimum Wage. This area of employment is protected by the National Minimum Wage act 1998 according to which:

A person that qualifies for a National Minimum wage is a person that is: a worker, is working in the UK under his contract and is no longer of compulsory school age. For the purpose of this act, a single hourly rate and pay reference period may be prescribed from time to time by the Secretary of State. (Painter, Holmes, 2010).

Currently, workers that are self-employed, voluntary workers, company directors or are family members of the employer living in the employer’s home. (Gov.uk, 2020)

2. Discrimination/ Equality Law:

A wide area covered by employment law is equality. The Equality Act 2010, legally protects workers from discrimination in the workplace and in wider society (Gov.uk,2013). Before its formation, there were several legislations that covered discrimination such as the Sex Discrimination Act 1975, Race relations act 1976 and Disability discrimination Act 1995. This act is applied to make sure all rights of individuals are protected and there is fair treatment and opportunity for all and involves disability, gender, marriage, maternity, race, religion, sex and sexual orientation-based bias. (legislation.go.uk,2020).

3. Equality of terms/ Equal pay:

equal pay refers to the right for men and women to be paid the same for doing a job that is equivalent in terms of effort, skill or decision making. It has been included in the UK sex discrimination Act 1970 and is now part of the Equality Act 2010. (CIPD,2020)

4. Maternity and paternity rights:

employment law covers rights of workers that are parents, these legislations protect mothers, fathers and adoptive parents in terms of paid maternity/paternity leave along with adoption and shared parental leave. (CIPD,2020). The laws that ensure that also women that are treated unfavorably because of pregnancy, discrimination related to maternity or are unfairly dismissed as a consequence are: Employment Relations Act 1999, Employment act 2002, Work and Families act 2006. Shared parental leave is covered by the Children and Families Act 2014.

Adopting parents are also entitled to up to 52 weeks of adoption leave, recent changes to legislation are more varied and inclusive of different family structures. (CIPD,2020).

6. Working time regulation:

Working times are regulated mainly by the Working time regulations Act 1998. Previously a worker’s right in relation to working hours and time off was based on the contractual agreement, now it states that an individual cannot exceed more than an average of 48 hours of work per working week. (CIPD,2020).

It declares that an individual is entitled to 11 hours of rest every 24 hours of the employment and a period of 24 hours of consecutive rest every 7 days or 48 hours every fortnight. The regulation specifies entitlement to a period of paid holiday a year that has to be consumed within a year(TSSA,2018).

According to the Government’s website, flexible working is a way of working that is adapted to the employee’s needs such as specific start or finish times or working remotely. This aspect is covered by the Flexible working regulation 2014.

8. Wrong or unfair dismissal:

unfair or wrongful dismissal comes under the legislation of “Employment Right Act 1996”. This legislation protects you if your employer doesn’t have a valid reason or doesn’t follow the company’s formal procedure in the process of dismissal (Gov.uk,2020)

Conclusion

Employment law is based on principles such as fairness, reasonableness, equal treatment and harmonisation. Analysing the various legislation we can conclude that these concepts are not consistent. It covers all aspects of employment and is always implementing new changes to adapt to new conditions, however this sector of legislation is not all-inclusive and it only protects workers that are strictly defined as “employees”. We can notice that it doesn’t consider emergent sectors of employment such as freelancers, gig workers, self-employed or agency workers. The Government will need to implement and amend laws regulating employment rights to ensure that the wellbeing and living standard of other categories of workers is also taken into consideration, sudden changes in economy and lifestyle can lead to this sector of employment to be left unprotected.

References

1. Eoc.org.uk. 2020. Employees Rights « EOC. [online] Available at: [Accessed 28 April 2020].
2. www.acas.org.uk. (n.d.). Your employment rights as an agency worker | Acas. [online] Available at: https://www.acas.org.uk/agency-workers/understanding-your-employment-rights-as-an-agency-worker [Accessed 28 Apr. 2020].
3. CIPD, Contracts of Employment (2019). Contracts of Employment | Factsheets | CIPD. [online] CIPD. Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/terms-conditions/contracts-factsheet#6018.
4. UK Legal Solutions | Thomson Reuters. (n.d.). Westlaw UK. [online] Available at: http://www.Westlaw.co.uk [Accessed 28 Apr. 2020].
5. Case studies of employment law I R.W Painter, Holmes
6. Government Equalities Office (2013). Equality Act 2010: guidance. [online] GOV.UK. Available at: https://www.gov.uk/guidance/equality-act-2010-guidance. [Accessed 28 Apr. 2020].
7. Legislation.gov.uk. (2010). Equality Act 2010. [online] Available at: http://www.legislation.gov.uk/ukpga/2010/15/section/4[Accessed 28 Apr. 2020].
8. Pay, E. (2019). Equal Pay | Factsheets | CIPD. [online] CIPD. Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/equal-pay/factsheet. Accessed 28 Apr. 2020].
9. CIPD, Maternity, Paternity & Adoption Rights (2019). Maternity, Paternity & Adoption Rights | Factsheets | CIPD. [online] CIPD. Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/maternity-paternity-rights/factsheet. [Accessed 28 Apr. 2020].
10. Wright, S. (2009). Working Time Regulations (1998). [online] Tssa.org.uk. Available at: https://www.tssa.org.uk/en/Your-union/your-workplace/employment-rights/working-time-regulations.cfm. [Accessed 28 Apr. 2020].
11. Government Digital Service (2012). Dismissal: your rights. [online] GOV.UK. Available at: https://www.gov.uk/dismissal/unfair-and-constructive-dismissal [Accessed 28 Apr 2020].