Employment Law Ninth Edition Packed with a wealth of case law and legislation, this book will enable you to fully under- stand 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 ninth 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. Offering comprehensive coverage of all the key aspects of individual and collective employ- ment law in a clear and accessible way, Employment Law is ideal for both LLB and HRM students. Malcolm Sargeant is Professor of Labour Law at Middlesex University and teaches dis- crimination 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 con- siderable experience as a consultant and is on the ACAS panel of arbitrators. Employment Law Ninth Edition Malcolm Sargeant and David Lewis Ninth edition published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Malcolm Sargeant and David Lewis The right of Malcolm 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 Eighth edition published by Routledge 2018 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, David Lewis. Description: 9th edition. | Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2019049959 (print) | LCCN 2019049960 (ebook) | ISBN 9780367200336 (hardback) | ISBN 9780367200350 (paperback) | ISBN 9780429259241 (ebook) Subjects: LCSH: Labor laws and legislation—Great Britain. Classification: LCC KD3009 .S27 2019 (print) | LCC KD3009 (ebook) | DDC 344.4101—dc23 LC record available at https://lccn.loc.gov/2019049959 LC ebook record available at https://lccn.loc.gov/2019049960 ISBN: 978-0-367-20033-6 (hbk) ISBN: 978-0-367-20035-0 (pbk) ISBN: 978-0-429-25924-1 (ebk) Typeset in Galliard by codeMantra Contents Table of statutes xv Table of cases xxvii Table of statutory instruments li Table of European legislation lvii Preface lxiii Publisher’s acknowledgements lxv Abbreviations lxvii 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 9 2 The employment relationship 10 2.1 Introduction 11 2.2 Parties to the contract – employers 12 2.2.1 Employers’ associations 12 2.2.2 Identifying the employer 13 2.2.3 Employers as employees 14 2.2.4 Associated, superior and principal employers 15 2.3 Parties to the contract – employees 16 2.3.1 Dependent labour 16 2.3.2 The distinction between the employed and the self-employed 17 2.4 Identifying the employee 20 2.4.1 The control test 20 2.4.2 The integration test 21 2.4.3 The economic reality test 22 2.4.4 The multiple factor test 23 2.4.5 Mutuality of obligation 24 vi | CONTENTS 2.5 Question of fact or law 26 2.6 The intentions of the parties 27 2.7 Apprentices 28 2.8 Employee shareholders 28 2.9 Continuity of employment 29 2.9.1 Continuity and sex discrimination 30 2.9.2 Continuity and the start date 30 2.9.3 Continuity and absences from work 31 2.9.4 Continuity and industrial disputes 33 2.9.5 Continuity and change of employer 33 Further reading 34 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 39 3.2.2 The Framework Agreement on part-time work 39 3.2.3 The Part-time Workers Regulations 40 3.3 Fixed-term contracts 43 3.4 Temporary agency workers 47 3.4.1 The Temporary Agency Work Directive 2008/104/EC 47 3.4.2 The Temporary Agency Workers Regulations 2010 48 3.4.3 Agency/worker relationship 49 3.4.4 Employment agencies/businesses 51 3.5 Zero hours contracts 53 3.6 Gangmasters and labour abuse 54 Further reading 54 4 The contract of employment 55 4.1 Express terms 56 4.2 The statutory statement 56 4.2.1 Names and addresses of employer and worker 57 4.2.2 Date when employment began 58 4.2.3 Date on which continuous employment began 58 4.2.4 Remuneration 58 4.2.5 Hours of work 59 4.2.6 Entitlement to holidays and holiday pay 60 4.2.7 Sickness, injury and pensions 60 4.2.8 Length of notice 61 4.2.9 Title of job or job description 61 4.2.10 Temporary contracts 61 4.2.11 Probationary periods 61 4.2.12 Training 62 4.2.13 Place of work 62 4.2.14 Collective agreements 62 4.2.15 Periods working outside the United Kingdom 62 4.2.16 General provisions 63 4.2.17 Disciplinary and grievance procedures 63 CONTENTS | vii 4.3 Implied terms 64 4.3.1 Terms implied by statute 64 4.3.2 Terms implied in fact 65 4.3.3 Terms implied by law 66 4.4 Duties of the employer 66 4.4.1 Duty of mutual trust and confidence 66 4.4.2 Duty to provide work and pay 70 4.4.3 Duty of care 72 4.5 Duties of employees 75 4.5.1 Duty of obedience and co-operation 75 4.5.2 Duty of fidelity 76 4.5.2.1 Not competing 76 4.5.2.2 Restrictive covenants 78 4.5.2.3 Confidential information 80 4.5.2.4 Public Interest Disclosure Act 1998 81 4.6 Other sources of terms 82 4.6.1 Custom and practice 82 4.6.2 Collective and workforce agreements 83 4.7 Variations in terms 84 Further reading 87 5 Termination of employment 88 5.1 Introduction 89 5.2 Termination of the contract not amounting to dismissal 89 5.2.1 Frustration 89 5.2.2 Death of the employer 90 5.2.3 Voluntary resignation 90 5.2.4 Termination by agreement 92 5.3 Termination of the contract by dismissal 93 5.3.1 Meaning of dismissal 93 5.3.2 Wrongful dismissal 94 5.3.3 Notice 95 5.3.4 Summary dismissal 96 5.3.5 Remedies for wrongful dismissal 98 5.4 Unfair dismissal 101 5.4.1 Eligibility 101 5.4.1.1 Only employees qualify 101 5.4.1.2 Illegality 102 5.4.1.3 Continuous employment 104 5.4.2 The dismissal 105 5.4.2.1 Whether a dismissal has taken place 105 5.4.2.2 Limited-term contracts 106 5.4.2.3 Constructive dismissal 106 5.4.2.4 The effective date of termination of employment 109 5.4.3 The reasons for dismissal 111 5.4.3.1 Statement of reasons for dismissal 111 5.4.3.2 Automatically unfair reasons 112 5.4.3.3 Fair or unfair reasons for dismissal 114 viii | CONTENTS 5.4.3.4 Capability or qualifications 116 5.4.3.5 Conduct 120 5.4.3.6 Redundancy 122 5.4.3.7 Contravention of an enactment 125 5.4.3.8 Some other substantial reason 125 5.4.3.9 Reasonableness 126 5.4.4 Procedural fairness (1): ACAS Code of Practice 130 5.4.5 Procedural fairness (2): the right to be accompanied 131 5.4.6 Time limit for claiming unfair dismissal 133 5.4.7 Pre-termination negotiations and settlement agreements, conciliation and arbitration 133 5.4.8 Remedies 135 5.4.8.1 Interim relief 136 5.4.8.2 Reinstatement or re-engagement 136 5.4.8.3 Compensation 139 5.5 Redundancy payments 143 5.5.1 Qualifications and exclusions 146 5.5.2 Lay-offs and short-time 148 5.5.3 Time off 148 5.5.4 Level of payments 149 Further reading 150 6 Equality: prohibited conduct and equality of terms 151 6.1 Equality 152 6.2 Does discrimination still take place? 152 6.3 European Union law 153 6.3.1 The Equal Opportunities and Equal Treatment Directive 154 6.3.2 The Directive for Equal Treatment in Employment and Occupation 154 6.3.3 The Race Directive 156 6.4 The Equality Act 2010 156 6.4.1 The protected characteristics 157 6.4.2 Prohibited conduct 158 6.4.2.1 Direct discrimination 158 6.4.2.2 Indirect discrimination 161 6.4.2.3 Harassment 165 6.4.2.4 Victimisation 167 6.4.3 Asylum and immigration 168 6.4.4 Discrimination in employment 169 6.4.5 Burden of proof 171 6.4.6 Liability of employers and employees 174 6.4.7 Relationships that have come to an end 175 6.4.8 Aiding contraventions 176 6.4.9 Lawful discrimination 177 6.4.9.1 Occupational requirements 177 6.4.9.2 Positive action 177 6.4.9.3 The general duty to promote equality 179 6.5 Remedies 180 6.5.1 Contracts 181 CONTENTS | ix 6.6 Equality of terms 181 6.6.1 The comparator 184 6.6.2 Like