Business & Employment Law Lecture 1 Sources of Employment Law and Institutions WB Jan 21th 2019
Teaching Block Two • Having access to the text is essential • Please see Moodle each week to confirm the page numbers for the set reading and for the Seminar Question sheets. • Assessment two hand in via Moodle is 10th May 2018
Course work Explained • 2250 words MAXIMUM – NO 10% allowance • Referencing must be OSCOLA • Usual rules on Plagiarism apply • Case Study (Available on Moodle in Lecture notes) • One question – answer is an essay. • Submit via TurnItIn on Moodle.
What is Employment Law • Can best be described as Applied Contract Law • Based on contract law principles • Commercial Law • Land Law • Employment Law – governed by contract and statute
Employment Law • Contract consists of:- • Express Terms • Implied Terms
Employment Law • Governed by Statute: • Employment Rights Act 1996 • Equality Act 2010 • Statutes related to Industrial Relations eg TUL(C)RA 1992/TUPE
Other Sources of Law • Influence of EU Law • Influence of the ECHR
Employment Law • Employment Law can be described as Applied Contract Law • Contract provisions apply • Bargaining power? • Role of Employment law is to prevent an abuse of power by either party by providing for minimum standards
CONTRACTUAL FREEDOM IN EMPLOYMENT • Employment relationship through contract core principles of contract law • freedom to enter contracts • freedom to choose precise terms of employment relationship • Common law of contract almost complete flexibility subject only to: • restraint of trade doctrine • general rules against enforcement of illegal contracts
CONTRACT OF EMPLOYMENT A contract of employment is a legally binding agreement between an employee and an employer, which is formed when the employee agrees to work for pay
Why is Employment Law Important? • To provide minimum standards of protection – ERA 1996? • To reduce the effect of dominant power? • To ensure that the legislature and not Trade Unions provide protection? • The workmen desire to get as much as possible, the masters to give as little as possible. The former are disposed to combine in order to raise, the latter in order to lower the price of labour. • Adam Smith, Wealth of Nations, I pp 74-75 (1776).
Recent changes of emphasis in relation to employment protection • New rules governing:- • Tribunal fees • Unfair dismissal • Opting out of specific protection • Focus on ADR
What is ADR? • Alternative Dispute Resolution • A system of resolving dispute without the need to take a claim to court/tribunal • Once the parties agree to be bound by the decision, a third party (the arbitrator) hears the dispute
The Arbitration Act 1996 • 3 General Principles • Fair resolution of disputes by an impartial system • Parties free to agree as to how the dispute should be resolved • The Court will not intervene unless there is a public policy issue
ACAS • Funded by government • Offers telephone advice to members of the public and to employers who subscribe on any employment related issue • Also work towards resolving employment issues before they reach the ET • s18A Employment Tribunals Act 1996 – Claimants must first contact ACAS.
Role of the Employment Tribunal • Hear cases in relation to the employment situation • Cheaper…(as a result of the recent changes, but questions remain concerning claims which did not go ahead as a result of the introduction of charges) • Speedier • Less formal • Bound by decisions of the EAT/CA/SC
Employment Appeal Tribunal • Applicant or respondent has a right of appeal • Appeals based on fact that the decision of the ET was perverse or incorrect on a point of law • EAT staffed by a High Court or Circuit Judge and sits in Edinburgh and London
Procedural Rules • Introduced to reduce the number of weak claims being brought • S13 Employment Tribunals Act 1996 – awards costs against litigant if time is wasted because of the way a case is conducted or because of the behaviour of a party
Fees Ruled Unlawful • In 2017 the Supreme Court ruled that charging fees was unlawful under UK and EU law as it restricted access to justice - R (on the application of Unison) v Lord Chancellor  UKSC 51 • Fees had reduced number of cases by 79%. Government is now refunding fees paid by Claimants between 2013 and 2017.
Effectiveness of Protection • So far we have identified how an employee can be protected • Employment Rights Act 1996 provides majority of protection • Must be an employee • Need to consider who an employee is and the consequences of the current economic climate • EgUber Taxis
Importance of the Contract of Employment • Employment Protection only available if a contract of employment exists • When disputes arise left to Court/Tribunal to decide whether Contract of employment exists or whether the relationship is not that of employer/employee.