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Employment Law
in Context
We work with leading authors to develop the
strongest educational materials in business and
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Under a range of well-known imprints, including
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Employment Law
in Context
An Introduction for HR Professionals
BRIAN WILLEY
Second edition
Pearson Education Limited
Edinburgh Gate
Harlow
Essex CM20 2JE
England
and Associated Companies throughout the world
Visit us on the World Wide Web at:
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First published 2000 by Pitman Publishing, a division of Pearson Professional Ltd
Second edition published 2003 by Pearson Education Limited
© Brian Willey 2000, 2003
The right of Brian Willey to be identified as author of this work
has been asserted by him in accordance with the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this publication may be reproduced, stored
in a retrieval system, or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without either the prior
written permission of the publisher or a licence permitting restricted copying
in the United Kingdom issued by the Copyright Licensing Agency Ltd,
90 Tottenham Court Road, London W1T 4LP.
ISBN: 0 273 67859-0
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
10 9 8 7 6 5 4 3 2 1
08 07 06 05 04 03
Typeset in 9.5/12pt Stone Serif by 35
Printed by Ashford Colour Press Ltd., Gosport
The publisher’s policy is to use paper manufactured from sustainable forests.
Contents
Preface xiv
Publisher’s acknowledgements xvii
List of abbreviations xviii
Table of cases xx
Table of statutes xxvi
Table of statutory instruments xxviii
Table of statutory codes of practice xxx
Table of European Community Law xxxi
List of useful websites xxxiii
1 An introduction to employment law 1
Learning objectives 1
1.1 Structure of the chapter 1
1.2 Introduction 2
Substantive aspects · Procedural aspects
Exercise 1.1 Future changes – where will the UK be in 2006?
Political perspectives
1.3 The nature of legal regulation 8
Standards in law
Exercise 1.2 How much freedom of expression?
Processes for complaint · Effective remedies
1.4 The nature of voluntary regulation 31
Employer discretion · Grievance procedures · Disciplinary procedures ·
Consultation and collective bargaining · Third parties
1.5 Some underpinning principles 34
Substantive issues · The processes of employment relations
1.6 Conclusion 40
Further reading · References
Part One The changing employment relationship 43
Introduction to Part One 45
Economically driven change · Changes in employment status ·
‘New model’ employment regulation · Conclusion
v
vi Contents
2 Regulating the employment relationship 47
Learning objectives 47
2.1 Structure of the chapter 47
2.2 Introduction 47
Defining the employment relationship · Frontier of control ·
The parties’ expectations · Three sets of ‘rules’ · The role of the
contract of employment
2.3 The context 50
Concepts of work and employment · The psychological contract ·
Individualism and collectivism · Diversity of employment status
Exercise 2.1 A flexible workforce?
2.4 The legal framework 62
Introduction · Status: employee, worker or independent contractor? ·
The characteristics of the contract of employment · The terms of a
contract of employment · Written information about contracts of
employment · Terminating a contract of employment · Employment
protection for ‘atypical’ workers
2.5 Conclusion 88
Exercise 2.2 Who has employment rights?
References
3 Managing change in the employment relationship 91
Learning objectives 91
3.1 Structure of the chapter 91
3.2 Introduction 92
3.3 Context 92
Private and public-sector change: an overall view · The
organisation’s culture · Strategic considerations · Operational
factors · Economic considerations · Employment relations matters ·
Tensions with legal requirements · The incidence and experience
of changes
3.4 The legal framework 102
Variation of contracts of employment · Flexibility in existing
contractual terms
Exercise 3.1 Some problems of managing variation
Transfers of undertakings
Exercise 3.2 Some problems of managing transfers of undertakings
Redundancy and redeployment
Exercise 3.3 Some problems in managing redundancies
3.5 Employment policies and practices 126
Variation · Transfers · Managing redundancies
Case study 3.1
Exercise 3.4
Further reading · References
Contents vii
Part Two Discrimination and equal opportunities 133
Introduction to Part Two 135
The concepts · The law · Voluntary action by employers · Conclusion ·
Further reading · References
4 Sex discrimination in the workplace 149
Learning objectives 149
4.1 Structure of the chapter 149
4.2 Introduction 150
Historic situation of women · Changing perspectives
4.3 The context 152
Participation in the labour market · Women’s pay · Social trends and
influences · Political approaches
4.4 The legal framework 160
Structure of discrimination law · Grounds of unlawful discrimination ·
Access to statutory rights · Direct discrimination · Indirect
discrimination · Claims relating to equal pay · Victimisation · Positive
action and positive discrimination · Special provisions · Liability ·
Enforcement procedures · Remedies
4.5 Employment policies and practices 180
Human resource strategy · Recruitment and selection · Terms and
conditions of employment · Working time · Training and development ·
Promotion and career progression · Dress and appearance ·
Retirement and pensions · Dismissal
4.6 Conclusion 187
Exercise 4.1 Some discrimination problems
Further reading · References
5 Race discrimination in the workplace 191
Learning objectives 191
5.1 Structure of the chapter 191
5.2 Introduction 192
Population profile of Britain · The concepts
5.3 The context 198
The social background · Political approaches · Labour-market
participation · Social issues
5.4 The legal framework 205
Grounds for unfair discrimination · The areas of employment
protection · Direct discrimination · Indirect discrimination ·
Victimisation · Special provisions: ‘genuine occupational qualification’ ·
Positive action and positive discrimination · Liability · Enforcement ·
Remedies · Employing workers from overseas
viii Contents
5.5 Employment policies and practices 220
Human resource strategy · Recruitment and selection · Pay and
benefits · Working time · Training and development, promotion and
transfers · Dress codes · Dismissal
Case study 5.1
Exercise 5.1
Further reading · References
6 Disability discrimination in the workplace 229
Learning objectives 229
6.1 Structure of the chapter 229
6.2 Introduction 230
6.3 The context 230
Defining disability · The social context · Disability and the labour
market · The employment context · Technological context · The
political and historical background · The developing political and
legislative context · Social welfare support
6.4 The legal framework 242
The coverage of the legislation · The meaning of disability · The
meaning of discrimination · The duty to make reasonable adjustments ·
Liability · Burden of proof · Enforcement procedures · Remedies ·
The Disability Rights Commission · Managing long-term
sick absence
6.5 Employment policies and practices 253
Management approach · Implications for contracts and agreements ·
Practical steps: the 1996 Code of Practice
Exercise 6.1 Some discrimination problems
Further reading · References
Part Three Regulating performance and conduct 259
Introduction to Part Three 261
7 Harassment and bullying at work 263
Learning objectives 263
7.1 Structure of the chapter 263
7.2 Introduction 264
Growing concern about harassment · Definitions
7.3 The context 265
Power relations · Cultural factors · The characteristics of the workplace ·
The parties involved · Possible consequences
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Contents ix
7.4 The legal framework 269
The contract of employment · European equal treatment legislation ·
Direct discrimination and detriments · Dismissal · Liability for the
harassment · Harassment by third parties · Action against the
perpetrator · Possible remedies in law for the victim
7.5 Employment policies and practices 277
Defining harassment and bullying · Who might be possible victims? ·
Approach to allegations of harassment and bullying · Managerial
roles and responsibilities · Informal procedures and counselling ·
Role of grievance procedure · Training · Communications · Role of
disciplinary action · Consultation with trade unions · Monitoring
7.6 Conclusions 281
Case study 7.1
Exercise 7.1
Further reading · References
8 Information, privacy and surveillance 284
Learning objectives 284
8.1 Structure of the chapter 284
8.2 Introduction 285
8.3 The context 285
Technological developments · Social values and human rights ·
Economic and security considerations
8.4 The legal framework 288
The Data Protection Act 1998 · Privacy and surveillance ·
Whistleblowing and public interest disclosure legislation
8.5 Employment policies and practices 296
The Data Protection Act: the Employment Practices Data
Protection Code · Privacy and surveillance · Whistleblowing
8.6 Conclusion 312
Further reading · References
9 Discipline and dismissal 313
Learning objectives 313
9.1 Structure of the chapter 313
9.2 Introduction 314
9.3 The context 315
The nature of the employment relationship · The common law of
contract · Social standards · Political action · Assessing the law’s
effectiveness
9.4 The legal framework 321
Introduction · The nature and purpose of discipline at work · Circumstances
in which contracts of employment end · Fair and unfair dismissal ·
x Contents
Fair reasons for dismissal · Unfair reasons for dismissal ·
Reasonableness in the circumstances · Procedural fairness
Exercise 9.1 Misconduct cases: Scenarios
Procedures for redress · The remedies
9.5 Employment policies and practices 342
The context: expectations and norms · Handling discipline and dismissal
Exercise 9.2 Discipline at work: Scenarios
Further reading · References
Part Four Terms and conditions of employment 353
Introduction to Part Four 355
10 Pay regulation 358
Learning objectives 358
10.1 Structure of the chapter 358
10.2 Introduction 358
10.3 The context 359
Economic issues · Political policy: the ‘free play’ of the market? ·
Social welfare factors · Social policy
10.4 The legal framework 366
Definitions · Regulating the pay transaction · Statutory national
minimum wage
10.5 Employment policies and practices 378
Contracts of employment and collective agreements ·
Special agreements · Information and records
Exercise 10.1 Pay regulation: Scenarios
References
11 Regulation of working time 382
Learning objectives 382
11.1 Structure of the chapter 382
11.2 Introduction 383
11.3 The context 385
The historic use of voluntary measures · A growing long-hours
culture · Social issues · Economic considerations
11.4 The legal framework 389
Piecemeal legal regulation · The Working Time Regulations 1998 ·
Working people with entitlements · The employer · Defining ‘working
time’ · Some key working-time provisions · Paid annual leave ·
Implementing the Regulations · Records · Enforcement · Are the
Working Time Regulations working?
Contents xi
11.5 Employment policies and practices 401
A strategic approach to implementation
11.6 A checklist for action 403
Exercise 11.1 Some scenarios
Further reading · References
12 Health and safety at work 407
Learning objectives 407
12.1 Structure of the chapter 407
12.2 Introduction 408
The concepts
12.3 The context 410
The economics of health and safety · Technology and ergonomic
factors · Work-related stress · The incidence of major accidents ·
The European dimension
12.4 The legal framework 417
Introduction: a diversity of legal action · The common law ·
Statute law · Some key regulations
Exercise 12.1 Assessing the risks?
Rights of employees · Consultation and representation
12.5 Employment policies and practices 439
Creating a safety culture · A safety policy · Safety consultation and
communication · Occupational health service · Employee assistance
programmes and counselling
Case study 12.1 The VDU operators: a safety grievance
Exercise 12.2 The VDU operators: a safety grievance
12.6 Conclusion 449
Further reading · References
13 Work-life balance, parental and dependency rights 451
Learning objectives 451
13.1 Structure of the chapter 451
13.2 Introduction 451
13.3 The context 452
Labour market and social trends · Work-life balance · Political initiatives
13.4 The legal framework 461
Pregnancy · Maternity leave entitlements · The status of the contract
of employment · Returning to work · Requesting flexible working ·
Parental, paternity, adoption and dependency leave · Detrimental
treatment and unfair dismissal · Statutory pay
13.5 Employment policies and practices 473
Workplace culture · Facilitating work-life balance · Leave entitlements ·
Flexible working time · Place of work · Facilities · Communication and
consultation about ‘work-life balance’
xii Contents
Case study 13.1 Dependency scheme in the Royal Borough of
Kingston upon Thames
Exercise 13.1 Developing a dependency policy
References
Part Five Collective rights at work 483
Introduction to Part Five 485
Preliminaries · The role of trade unions · The traditional model of
British industrial relations · The ‘British disease’ · A ‘new model’ of
employee relations? · International influences · Conclusion · References
14 Employee participation 499
Brian Willey and Huw Morris
Learning objectives 499
14.1 Structure of the chapter 499
14.2 Introduction 500
The concept of consultation · The concept of collective bargaining ·
The concept of industrial democracy
14.3 The context 507
The development of employee participation in the UK ·
Employee participation policy and practice in the UK
14.4 The legal framework 516
Low-level participation · Financial participation ·
Higher-level participation
Exercise 14.1: Implications of the Information and Consultation Directive
Statutory rights for representatives · Statutory recognition
for collective bargaining
14.5 Employment policies and practices 534
Traditional managerialist · Progressive managerialist ·
‘Industrial democrat’ or partnership · Social inclusionist ·
Summary of employer approaches
14.6 Conclusion 544
Further reading · References
15 Industrial action 547
Learning objectives 547
15.1 Structure of the chapter 547
15.2 Introduction 547
What is industrial action? Sociological definitions ·
What is industrial action? Definitions from legislators ·
The phenomenon of industrial action
Contents xiii
15.3 The context 551
1945–79 · 1979 to date · A ‘dual track policy’ · The position of
individual employees
15.4 The legal framework 556
Individual employees · Trade unions
15.5 Conclusion 572
Case study 15.1
Exercise 15.1
Further reading · References
16 Conclusion 576
16.1 Ethical standards 576
16.2 Minimum standards 576
16.3 Juridification 577
16.4 Business interests 577
16.5 Labour-market flexibility 579
16.6 The accommodation of non-work life 580
16.7 Individualisation and collectivism 580
16.8 Representation rights 581
16.9 Qualified access to statutory rights 582
16.10 Enforcement processes 583
16.11 The value of the remedies 584
16.12 The future 585
References
Appendix Feedback on case studies and exercises 586
Glossary 601
Index 609
Preface
Particularly in the past twenty-five years, employment law has had a growing
significance for managers – whether general managers or human resource practi-
tioners. Potentially, it influences and may constrain action they want to take. One
principal aim of this textbook is to help those with day-to-day responsibilities for
employee relations and human resource management to manage within the law.
Its purpose is to promote understanding of three aspects:
n the application of the law to employment relations (in policy making and
problem solving);
n the social purposes behind the legislation (what Parliament and the European
Union are trying to achieve); and
n the contextual issues that affect the implementation of the law (e.g. social
trends and economic considerations).
Applying the law (through problem solving and policy making) involves a good
understanding of the other two areas. A manager advising on the handling of
a dismissal, for example, is more likely to produce an effective and lawful out-
come if s/he does not focus exclusively on the problem in hand (terminating the
employment for employee misconduct). Remembering the purposes behind the
legislation (to provide fair reasons, fair treatment and natural justice and con-
sideration of all the circumstances) is important. Similarly, a recognition of the
business context and organisational needs is important.
Likewise, the development of corporate policies is more likely to be effective and
well informed if they are not seen, narrowly, as a series of conditions of employ-
ment to be applied mechanistically. For example, when parental and dependency
leave policies are formulated, an understanding of the social trends against which
they are developed is important (e.g. greater economic activity by women, longer
working hours, difficulties of reconciling work and non-work life). Furthermore,
the social purposes behind this legislation (to promote family-friendly policies
and provide a better balance between work and non-work life) should be acknow-
ledged to ensure that the corporate policies achieve the statutory objectives. A
manager who understands these purposes is better able to defend and argue for
policy developments with colleagues.
So, this textbook aims to be integrative. It is hoped that those concerns that
exist (particularly among HR managers and general managers) about the impact
of employment law can be addressed and that they can gain both a familiarity
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