Cases and Materials on Employment Law

by Painter, Richard; Holmes, Ann

• ISBN13: 9780199284498
• ISBN10: 0199284490
• Edition: 6th
• Format: Paperback
• Copyright: 2006-11-09
• Publisher: Oxford University Press

Summary

The sixth edition of the widely recommended Cases and Materials on Employment Law offers students a complete reference source. As the most regularly updated casebook on employment law on the market, the new edition provides thorough and accurate coverage of this dynamic and controversial subject, taking into consideration recent developments. The wide ranging coverage of case law and legislation familiarises students with the primary sources. Notes and questions clarify key issues and aid understanding. The book is supported by an Online Resource Centre which provides regular updates and developments to cases and legislation in this rapidly changing area of the law.

Author Biography

Richard W. Painter is a Professor of Law and Pro-Vice Chancellor at Staffordshire University. Ann Holmes is Dean of the Law School at Staffordshire University.

Table of Contents

Preface	xiii
Acknowledgements	xv
Abbreviations	xvii
Table of Cases	xix
Table of Statutes	xxxvii
Table of Secondary Legislation	xliii
1 Introduction to Employment Law	1	(47)
SECTION 1: Contexts and Approaches	1	(7)
A: The Traditional Approach	1	(1)
B: The Alternative Approach	2	(2)
C: A Conclusion on the Previous Conservative Government's Employment Relations Strategy	4	(1)
D: A Third Way?	4	(4)
SECTION 2: The Institutional Framework of Employment Law	8	(20)
A: The Advisory, Conciliation and Arbitration Service	8	(2)
B: The Central Arbitration Committee	10	(1)
C: The Certification Officer	10	(1)
D: The Commission for Racial Equality/Equal Opportunities Commission/Disability Rights Commission	11	(6)
E: Employment Tribunals	17	(8)
F: The Employment Appeal Tribunal	25	(3)
SECTION 3: The International Labour Organisation	28	(1)
SECTION 4: The European Convention on Human Rights and the Human Rights Act 1998	29	(5)
A: Interpreting Legislation in Accordance with the Convention	29	(1)
B: Declarations on Incompatibility	30	(1)
C: Public Authorities Must Act in Compliance with the Convention	30	(1)
D: The Human Rights Act and the Implications for Employment Law	31	(3)
SECTION 5: European Community Law	34	(14)
A: Historical Background	34	(6)
B: Recent and Impending Developments	40	(3)
C: The Relationship Between Community Law and Domestic Law	43	(5)
2 Defining the Contract of Employment and its Continuity	48	(41)
SECTION 1: General Introduction: The Residual Importance of the Law of Contract	48	(1)
SECTION 2: Employee Status	48	(22)
A: A Checklist	50	(1)
B: Mutuality of Obligation	51	(16)
C: Employee Status: A Question of Law or Fact?	67	(1)
D: Self-description	68	(2)
SECTION 3: Continuity of Employment	70	(19)
A: Continuity: Hours of Work	70	(10)
B: Continuity: Periods Away from Work	80	(8)
C: Strikes and Lockouts	88	(1)
3 Constructing the Contract of Employment	89	(83)
SECTION 1: Express Terms	89	(6)
SECTION 2: Collective Bargaining	95	(8)
A: Methods of Incorporation	96	(4)
B: Inappropriateness of Collective Terms	100	(2)
C: 'No-Strike Clauses'	102	(1)
SECTION 3: Constructing the Contract of Employment: Implied Terms	103	(3)
A: Subjective or Objective Tests	103	(1)
B: Factual Implied Terms: Some Examples	104	(2)
SECTION 4: Constructing the Contract of Employment: Characteristic or Imposed Terms	106	(1)
SECTION 5: Constructing the Contract of Employment: Work Rules	107	(1)
SECTION 6: Constructing the Contract of Employment: Custom and Practice	107	(3)
SECTION 7: Constructing the Contract of Employment: Statutory Implied Terms	110	(15)
A: Equal Pay Act 1970	110	(1)
B: Employment Rights Act 1996	110	(1)
C: National Minimum Wage Act 1998	110	(15)
SECTION 8: The Characteristic Rights and Obligations of the Employer and Employee	125	(47)
4 Equal Pay	172	(64)
SECTION 1: Introduction	172	(4)
SECTION 2: European Community Law	176	(14)
SECTION 3: Equal Pay Act 1970	190	(46)
A: What Amounts to 'Pay'?	194	(3)
B: What is Meant by 'Same Employment'?	197	(8)
C: 'Like Work'	205	(3)
D: Work Rated as Equivalent	208	(3)
E: 'Equal Value'	211	(2)
F: Genuine Material Difference/Factor	213	(23)
5 Discrimination in the Workplace	236	(86)
SECTION 1: Introduction	236	(5)
SECTION 2: European Community Law	241	(10)
SECTION 3: Positive Discrimination	251	(3)
SECTION 4: Sex and Race Discrimination	254	(50)
A: Direct Discrimination	255	(23)
B: Indirect Discrimination	278	(18)
C: Pregnancy	296	(8)
SECTION 5: Victimisation	304	(3)
SECTION 6: Discrimination in Employment	307	(3)
SECTION 7: Genuine Occupational Qualifications	310	(6)
SECTION 8: Compensation	316	(6)
6 Other Forms of Discrimination	322	(36)
SECTION 1: Introduction	322	(1)
SECTION 2: Disability Discrimination Act 1995	322	(17)
PART I DISABILITY	323	(9)
A: Meaning of 'Disability'	323	(9)
PART II EMPLOYMENT FIELD	332	(26)
B: Direct Discrimination	332	(2)
C: Reasonable Adjustments	334	(5)
SECTION 3: Sexual Orientation and Gender Reassignment	339	(11)
SECTION 4: Religion or Belief	350	(2)
SECTION 5: Age	352	(6)
7 Terminating the Contract	358	(67)
SECTION 1: Termination Involving Dismissal at Common Law	358	(18)
A: Dismissal with Notice	358	(1)
B: Summary Dismissal for Fundamental Breach	359	(17)
SECTION 2: Terminations Which may not Amount to Dismissal	376	(9)
A: Frustration	376	(4)
B: Termination by Mutual Agreement	380	(5)
SECTION 3: Constructive Dismissal	385	(13)
A: Dismissal or Resignation?	385	(2)
B: The Concept of Constructive Dismissal	387	(3)
C: Examples of Conduct Justifying Resignation	390	(8)
SECTION 4: Fixed-term, 'Task' and Contingent Contracts	398	(2)
SECTION 5: Remedies	400	(25)
A: Damages	400	(18)
B: When Will Remedies Other than Damages be Granted?	418	(7)
8 Unfair Dismissal	425	(82)
SECTION 1: Introduction	425	(2)
SECTION 2: Establishing Unfair Dismissal	427	(74)
A: Stage One: Has a Dismissal Taken Place?	428	(1)
B: Stage Two: Is the Applicant Qualified to Make a Claim?	428	(7)
C: Stage Three: Is the Dismissal Fair or Unfair?	435	(53)
D: Stage Four: What Remedies are Available?	488	(13)
SECTION 3: The Law of Unfair Dismissal: A Critique	501	(6)
9 Redundancy	507	(92)
SECTION 1: Introduction	507	(1)
SECTION 2: Who Qualifies for a Redundancy Payment?	508	(20)
A: Employees Who do Not Qualify	508	(1)
B: Dismissal	509	(3)
C: When is the Dismissal by Reason of Redundancy?	512	(16)
SECTION 3: Offers of Suitable Alternative Employment	528	(8)
A: Suitable Alternative Employment?	528	(5)
B: The Reasonableness of a Refusal	533	(3)
SECTION 4: Lay-off and Short-time Working	536	(2)
SECTION 5: Transfer of Undertakings	538	(51)
A: Introduction	538	(1)
B: The Transfer of Undertakings (Protection of Employment) Regulations 1981	539	(17)
C: TUPE Revisions	556	(33)
SECTION 6. Handling the Redundancy Situation: Procedural Correctness	589	(10)
A: Pre-redundancy Procedures	589	(2)
B: Consultation with the Trade Union	591	(8)
10 Trade Unions and their Members	599	(81)
SECTION 1: The Trade Union	599	(11)
A: The Legal Definition	599	(2)
B: Certificate of Independence	601	(2)
C: The Legal Status of a Trade Union	603	(1)
D: Restraint of Trade	603	(1)
E: Political Funds and Objects	604	(4)
F: Contracting Out of the Political Levy and the Check-off	608	(1)
G: Deduction of Trade Union Membership Subscriptions	608	(2)
SECTION 2: Freedom of Association	610	(17)
A: International Standards	610	(3)
B: Refusal of Employment on Grounds of Trade Union Membership	613	(1)
C: Action Short of Dismissal on Grounds Related to Union Membership or Activities	614	(8)
D: Dismissal on Grounds Related to Union Membership or Activities	622	(4)
E: Selection for Redundancy on Grounds Related to Union Membership or Activities	626	(1)
SECTION 3: Trade Unions and Collective Bargaining	627	(25)
A: The New Statutory Recognition Procedure	627	(14)
B: Effects of Provisions Restricting the Right to Take Industrial Action	641	(1)
C: Disclosure of Information for the Purposes of Collective Bargaining	641	(5)
D: Time Off for Trade Union Duties and Activities	646	(6)
SECTION 4: Trade Unions and their Members	652	(28)
A: The Residual Importance of the Common Law	652	(6)
B: Refusals to Admit and Expulsions in the Interests of Inter-Union Relations	658	(1)
C: Statutory Controls Over Admissions And Expulsions	659	(3)
D: Unjustifiable Discipline	662	(3)
E: Trade Union Democracy	665	(15)
11 Industrial Conflict I	680	(70)
SECTION 1: Introduction	680	(1)
SECTION 2: Sanctions Against Individual Strikers	681	(10)
SECTION 3: Legal Action Against the Trade Union and Strike Organisers	691	(59)
A: Stage One: Civil Liabilities for Industrial Action	691	(14)
B: Stage Two: The Immunities	705	(15)
C: Stage Three: Removal of the Immunities	720	(30)
12 Industrial Conflict II	750	(27)
SECTION 1: Picketing	750	(18)
A: The Freedom To Picket	750	(2)
B: Civil Liabilities for Picketing	752	(10)
C: Criminal Liability for Picketing	762	(6)
SECTION 2: Industrial Action: Civil Remedies and Enforcement	768	(9)
A: An 'Act Done by a Trade Union'	768	(2)
B: Injunctions	770	(2)
C: Damages	772	(1)
D: The Citizen and the Control of Industrial Action	773	(1)
E: Workers Whose Right Lawfully to Withdraw their Labour is Wholly or Partly Restricted	774	(2)
F: Emergency Powers	776	(1)
13 Health and Safety at Work	777	(60)
SECTION 1: Introduction	777	(1)
SECTION 2: Employer's Liability	777	(25)
A: Duty of Care	777	(25)
SECTION 3: Breach of Statutory Duty	802	(5)
SECTION 4: Health and Safety at Work etc. Act 1974	807	(20)
A: Duty Owed by Employers to their Employees	811	(4)
B: Safety Policies	815	(2)
C: Duty Owed to Persons other than Employees	817	(6)
D: Duties of Persons Concerned with Premises	823	(4)
SECTION 5: Working Time Regulations 1998	827	(10)
Index	837