Employment Law Eighth Edition Offering comprehensive coverage of all the key aspects of individual and collective employment law in a clear and accessible way, Employment Law is ideal for both LLB and HRM students. Packed with a wealth of case law and legislation, this book will enable you to fully understand the intricacies of this fast-changing subject with ease. With features such as chapter summaries and further reading suggestions, Employment Law is well-suited to support you in your studies. The eighth edition has been fully updated to include coverage of the latest legislative and case law developments, including: ● Issues around shared parental leave ● The national living wage ● Legal developments in the area of non-standard work Malcolm Sargeant is Professor of Labour Law at Middlesex University and teaches discrimination law at both undergraduate and postgraduate levels. He is currently co-author of several student text books on employment law and has also authored and edited other books on aspects of discrimination law. David Lewis is Professor of Employment Law at Middlesex University. He has written specialist and general books and has published articles in several countries. David has considerable experience as a consultant and is on the ACAS panel of arbitrators. Taylor & Francis Taylor & Francis Group http:/taylorandfrancis.com Employment Law Eighth Edition Malcolm Sargeant and David Lewis ROUTLEDGE Routledge Taylor & Francis Group LONDON AND NEW YORK Eighth edition published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 Malcolm Sargeant and David Lewis The right of Malcom Sargeant and David Lewis to be identified as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by Pearson 2001 Seventh edition published by Pearson 2014 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Names: Sargeant, Malcolm, author. | Lewis, David, 1949 March 24- author. Title: Employment law / Malcolm Sargeant and David Lewis. Description: 8. | Milton Park, Abington, Oxon ; New York, NY : Routledge, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017046326| ISBN 9781138703209 (hbk) | ISBN 9781138744929 (pbk) | ISBN 9781315203263 (ebk) Subjects: LCSH: Labor laws and legislation—Great Britain. Classification: LCC KD3009 .S27 2018 | DDC 344.4101—dc23 LC record available at https://lccn.loc.gov/2017046326 ISBN: 978-1-138-70320-9 (hbk) ISBN: 978-1-138-74492-9 (pbk) ISBN: 978-1-3152-0326-3 (ebk) Typeset in Joanna MT by Keystroke, Neville Lodge, Tettenhall, Wolverhampton Contents Table of statutes xv Table of cases xxvii Table of statutory instruments xlix Table of European legislation lv Preface lxi Publisher’s acknowledgements lxiii Abbreviations lxv 1 The study of employment law 1 1.1 Introduction 2 1.2 Primary and secondary legislation 2 1.3 The EU Treaties and legislation 3 1.4 The courts 4 1.4.1 Employment tribunals and the EAT 4 1.4.2 Case reports 5 1.5 Advisory, Conciliation and Arbitration Service 6 1.6 Central Arbitration Committee 7 1.7 Certification Officer 7 1.8 Information Commissioner 8 1.9 Equality and Human Rights Commission (EHRC) 8 1.10 Other useful websites 9 Further reading 10 2 The employment relationship 11 2.1 Introduction 12 2.2 Parties to the contract – employers 13 2.2.1 Employers’ associations 13 2.2.2 Identifying the employer 14 2.2.3 Employers as employees 15 2.2.4 Associated, superior and principal employers 16 2.3 Parties to the contract – employees 17 2.3.1 Dependent labour 17 2.3.2 The distinction between the employed and the self-employed 18 2.4 Identifying the employee 21 2.4.1 The control test 21 2.4.2 The integration test 22 2.4.3 The economic reality test 23 2.4.4 The multiple factor test 24 2.4.5 Mutuality of obligation 24 2.5 Question of fact or law 26 2.6 The intentions of the parties 27 vi | CONTENTS 2.7 Apprentices 28 2.8 Employee shareholders 29 2.9 Continuity of employment 30 2.9.1 Continuity and sex discrimination 30 2.9.2 Continuity and the start date 31 2.9.3 Continuity and absences from work 32 2.9.4 Continuity and industrial disputes 34 2.9.5 Continuity and change of employer 34 Further reading 35 3 Non-standard working 36 3.1 The gig economy 37 3.2 Part-time contracts 38 3.2.1 Discrimination against part-time workers 38 3.2.2 The Framework Agreement on part-time work 38 3.2.3 The Part-time Workers Regulations 39 3.3 Fixed-term contracts 42 3.4 Temporary agency workers 46 3.4.1 The Temporary Agency Work Directive 2008/104/EC 46 3.4.2 The Temporary Agency Workers Regulations 2010 47 3.4.3 Agency/worker relationship 48 3.4.4 Employment agencies/businesses 49 3.5 Zero hours contracts 51 3.6 Gangmasters and labour abuse 52 Further reading 53 4 The contract of employment 54 4.1 Express terms 55 4.2 The statutory statement 55 4.2.1 Names and addresses of employer and employee 56 4.2.2 Date when employment began 57 4.2.3 Date on which continuous employment began 57 4.2.4 Remuneration 57 4.2.5 Hours of work 58 4.2.6 Entitlement to holidays and holiday pay 59 4.2.7 Sickness, injury and pensions 59 4.2.8 Length of notice 60 4.2.9 Title of job or job description 60 4.2.10 Temporary contracts 60 4.2.11 Place of work 60 4.2.12 Collective agreements 61 4.2.13 Periods working outside the United Kingdom 61 4.2.14 General provisions 62 4.2.15 Disciplinary and grievance procedures 62 4.3 Implied terms 63 4.3.1 Terms implied by statute 63 4.3.2 Terms implied in fact 63 4.3.3 Terms implied by law 65 CONTENTS | vii 4.4 Duties of the employer 65 4.4.1 Duty of mutual trust and confidence 65 4.4.2 Duty to provide work and pay 68 4.4.3 Duty of care 70 4.5 Duties of employees 73 4.5.1 Duty of obedience and co-operation 73 4.5.2 Duty of fidelity 74 4.5.2.1 Not competing 74 4.5.2.2 Restrictive covenants 75 4.5.2.3 Confidential information 77 4.5.2.4 Public Interest Disclosure Act 1998 78 4.6 Other sources of terms 80 4.6.1 Custom and practice 80 4.6.2 Collective and workforce agreements 80 4.7 Variations in terms 81 Further reading 84 5 Termination of employment 85 5.1 Introduction 86 5.2 Termination of the contract not amounting to dismissal 86 5.2.1 Frustration 86 5.2.2 Death of the employer 87 5.2.3 Voluntary resignation 87 5.2.4 Termination by agreement 89 5.3 Termination of the contract by dismissal 90 5.3.1 Meaning of dismissal 90 5.3.2 Wrongful dismissal 90 5.3.3 Notice 92 5.3.4 Summary dismissal 93 5.3.5 Remedies for wrongful dismissal 94 5.4 Unfair dismissal 97 5.4.1 Eligibility 97 5.4.1.1 Only employees qualify 97 5.4.1.2 Illegality 98 5.4.1.3 Continuous employment 100 5.4.2 The dismissal 101 5.4.2.1 Whether a dismissal has taken place 101 5.4.2.2 Limited-term contracts 102 5.4.2.3 Constructive dismissal 102 5.4.2.4 The effective date of termination of employment 104 5.4.3 The reasons for dismissal 106 5.4.3.1 Statement of reasons for dismissal 106 5.4.3.2 Automatically unfair reasons 107 5.4.3.3 Fair or unfair reasons for dismissal 110 5.4.3.4 Capability or qualifications 111 5.4.3.5 Conduct 115 5.4.3.6 Redundancy 117 5.4.3.7 Contravention of an enactment 119 5.4.3.8 Some other substantial reason 119 5.4.3.9 Reasonableness 121 viii | CONTENTS 5.4.4 Procedural fairness (1): ACAS Code of Practice 124 5.4.5 Procedural fairness (2): the right to be accompanied 125 5.4.6 Time limit for claiming unfair dismissal 126 5.4.7 Pre-termination negotiations and settlement agreements, conciliation and arbitration 127 5.4.8 Remedies 129 5.4.8.1 Interim relief 129 5.4.8.2 Reinstatement or re-engagement 130 5.4.8.3 Compensation 132 5.5 Redundancy payments 136 5.5.1 Qualifications and exclusions 139 5.5.2 Lay-offs and short-time 141 5.5.3 Time off 141 5.5.4 Level of payments 141 Further reading 142 6 Equality: prohibited conduct and equality of terms 144 6.1 Equality 145 6.2 Does discrimination still take place? 145 6.3 European Union law 147 6.3.1 The Equal Opportunities and Equal Treatment Directive 147 6.3.2 The Directive for Equal Treatment in Employment and Occupation 147 6.3.3 The Race Directive 149 6.4 The Equality Act 2010 149 6.4.1 The protected characteristics 150 6.4.2 Prohibited conduct 151 6.4.2.1 Direct discrimination 151 6.4.2.2 Indirect discrimination 153 6.4.2.3 Harassment 157 6.4.2.4 Victimisation 159 6.4.3 Asylum and immigration 160 6.4.4 Discrimination in employment 161 6.4.5 Burden of proof 163 6.4.6 Liability of employers and employees 165 6.4.7 Relationships that have come to an end 167 6.4.8 Aiding contraventions 167 6.4.9 Lawful discrimination 168 6.4.9.1 Occupational requirements 168 6.4.9.2 Positive action 169 6.4.9.3 The general duty to promote equality 170 6.5 Remedies 171 6.5.1 Contracts 172 6.6 Equality of terms 172 6.6.1 The comparator 174 6.6.2 Like work 175 6.6.3 Work rated as equivalent 176 6.6.4 Work of equal