Waud's Employment Law: The Practical Guide for Personnel and Human Resource Managers, Trade Union Officials, Employers, Employees and Lawyers (Daily Telegraph)

641 Pages·2001·172.69 MB·English

by  Christopher Waud

Waud's
EMPLOYMENT
The Practical Guide for
Personnel Managers,
Trade Union Officials,
Employers, Employees
and Lawyers
13th edition
KOGAN
PAGE
INFORMATION AND THE LAW
Every effort has been made to ensure the accuorfa cthye information
and guidancei n this book. However, no legal responsibility can be
accepted by the author or the publishers for the accuracy of that infor-
mation and guidance. In the final analysis,i sit f or the courts andt ri-
bunals to give an authoritative interpretation of the lawa s laid down in
Acts of Parliament and their attendant statutory instruments.
This bookh as been endorsed by the Institute of Directors.
The endorsement is given to selected Kogan Pbaogoek s which the IoD recognisesa s
being of specific interest toit s members and providing them with up-to-date,
informative and practical resourcesf or creating business success. Kogan Page books
endorsed by the IoD represent the most authoritative guidance availableo n a wide
range of subjects including management, finance, marketingtr,a ining and HR.
The views expresseidn this book are those of the author and are not necessarily the
same as those of the Institute of Directors.
First published in 1985 by MichaelO Mara Books Limited.
Thirteenth edition published in 2001 by Kogan Page Limited.
The right of Peter Chandler to be identified as the author of this work has been
asserted by him in accordance with the Copyright, Designs& Patents Act 1998.
Apart from any fair dealing for the purposes of research or private study, or criticism
or review, as permitted under the Copyright, Designs& Patents Act 1988, this publi-
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sent to the publishers at the undermentioned address.
Kogan Page Limited
120 Pentonville Road
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0 Peter Chandler 1998,2001
~~~ ~~
British Library Cataloguing in Publication Data
A CIP record fothr is book is available fromt he British Library.
ISBN 0 7494 3137 7
Typeset by Saxon Graphics Ltd, Derby
Printed and bound in Great Britain by CreativPer int and Design (Wales), Ebbw Vale
Contents
About this book mi
1 The law at work 1
General information 1
Present position 2
Tribunals or courts -which course to follow? 3
Relationship between common and statute law 4
Legislation - how affected 7
Division of work 12
Employment tribunals 22
County court 16
Employment Appeal Tribunal (EAT) 17
The High Court 17
The Courto f Appeal 22
The House of Lords 22
The European Court oflustice (ECJ) 22
The European Court of Human Rights (ECHR) 23
ACAS and the Central Arbitration Committee 24
Certification Oficer 26
2 Matters of mutual concern to common law and statute
law 29
Employee or self-employed? 29
Burden of Proof 33
Obligation to provide work 35
Illegal contracts 36
Frustration of contract 39
Repudiato y orfundamental breach 42
’Out of court’settlements 43
‘COT 3’ agreements 44
‘Compromise‘agreements 44
’Arbitration’agreements 46
Without prejudice‘ 47
’In honour only’ 48
‘Ex gratia’ payments 49
’Mitigation of loss’ 51
Agents and representatives 53
Acts of solicitors and other skilled advisers 54
iv Contents
3 Statutory employment rights (general) 57
Rights of employees not to be overridden 57
‘COT 3’ agreements 58
’Compromise’ agreements 59
‘Arbitration‘agreements 60
Statutory notice periods 60
’Eflective date of termination’ 62
’Continuity of employment‘ 66
Dismissal 73
Time limitsfo r complaints 83
Who ‘ordinarily works’ in Great Britain? 88
Meaning of the expression ‘a week‘s pay’ 89
‘Normal retiring age‘ 90
Disciplina y rules and procedures 92
’Associated employer’ 98
Codes of practice 100
Meaning to be given to statutes 100
The parties to a dispute 102
Vexat ious litigants 10 3
4 Redundancies 105
General information 105
Who is entitled to redundancy pay? 108
When does a redundancy situation arise? 112
Lay-ofi and short-time working 115
Strikes and other industrial action 11 7
Calculation of redundancy pay 11 7
An employer’s refusal or failure to pay 120
Pre-redundancy consultations 121
Collective redundancies 121
When mustr edundancy consultations begin? 122
Scope of consultations 123
Duty to notify Secretary of State 124
Individual consultations 125
Protective awards 126
Case law 127
5 Unfair dismissal 130
General information 130
Qualifying conditions 130
Complaints of unfair or unlawful dismissal 131
Excluded classes (employees not protected) 131
Employees dismissed for taking unofficial industrial action 132
Contents v
Employees dismissed for taking oficial industriaal ction 133
Dismissal during ‘protected industrial action’ 134
Case law 135
Dismissal during a ‘lock-out‘ 137
Permitted or legitimate reasons for dismissal 137
TUPE-related dismissals 138
Case law 139
Inadmissible and unlawfil reasons for dismissal 140
Dismissal on grounds of pregnancy or maternity, etc 140
Dismissal on grounds of trade union membership or activities 142
Collective bargaining: recognition 143
Dismissal in health and safety cases 144
Dismissal for refising Sundayw ork 146
Working time cases 147
Dismissal of pension scheme trustees 148
Dismissal of an ‘employee representative’ 149
Dismissal for making a ‘protected disclosure’ 150
Dismissal for asserting a statutory right 151
National minimum wage cases 152
Tax credit cases 152
European Works Council cases 153
Part-time workers 154
Interim relief pending determination of complaint 154
Dismissal -fair or unfair? 156
Con tribtuo yf aul t 187
Dismissal of replacement employees 190
Remedies for unfair dismissal 190
Who pays the compensation? 193
How compensation is calculated 193
Basic award 193
Compensatory award 195
Additional award 197
Recoupment of Social Security benefits 198
Time limitsf or ’presenting’a complaint 199
Case law 199
6 Action short of dismissal and victimisation 203
General information 203
Trade Union E+L abour Relations (Consolidation) Act 1992 204
Sex Discrimination Act 1975 208
Race Relations Act 1976 209
Disability Discrimination Act 1995 210
Employment Rights Act 1996 210
vi Contents
National Minimum Wage Act 1998 213
Tax Credits Act 1999 214
Other 'nod etrimental treatment' provisions 214
7 Liability of trade unions and their officials for torts 215
Background 215
The current position 21 7
When liability arises 217
Interference with contracts of employment 219
'In contemplation or furtherance of a trade dispute' 220
'Primay ' and 'seconday ' action 221
'Support undera secret ballot' 221
Lawful picketing 227
Strict compliance essential 229
Limits on damages 230
Time limits 230
8 A contract under the 'common law' 231
General information 231
Written statemento f employment particulars 233
What is a breach of contract? 233
Consequence of a breach 234
Acting ing ood faith 236
Wrongful dismissal 23 7
The employer's right to dismiss 239
The right to suspend 240
Injunctions restraining dismissal 240
Variation in termso f employment 242
Compensation for breach of contract 244
Time limits 245
9 Contractso f employment 247
Minimum notice periods 247
Written statemento f employment particulars 247
Particulars to be included in the written statement 248
Particulars to be included in the 'principal statement' 251
Supplementary instalments 252
Disciplinay rules and procedures 252
Grievances and procedure 253
Comment u y 253
Statement of changes 265
Excluded classes 265
Remedies for failure to supplya written statement of employment
particulars 266
Contents vii
Amending the employment contract 268
Time limits 268
10 Restrictivec ovenants 270
General information 27 0
The grantingo f an injunction 272
Where the covenantor is vendoro r shareholder 273
Application of the principles 27 3
Indirect restraintso f trade 274
Equitable restraints 275
How enforceable? 277
Time limits 278
11 Equal pay and sex discrimination 279
General information 279
Equal Pay Act 2970 280
European law 283
The effect of EU law 286
Essence of the Equal Pay Act 1970 287
Defence of ’genuine material diflerence’ 290
To whom does equal pay legislation apply? 291
Case law 293
Sex DiscriminationA ct 1975 294
European law 294
Part-time employees 295
Types of discrimination 296
Direct discrimination 297
Indirect discrimination 298
Victimisation 304
Discrimination againstm arried persons 305
When discrimination is unlawful 306
Sexual harassment 308
Retirement age 309
‘Genuine occupational qualification’ 310
Discrimination onh ealth and safety grounds 312
Other exceptions 312
Persons to whom 1975 Act applies 313
Discrimination byb arristers and advocates 314
Discriminatoy advertisements 314
Case law 314
Questions and replies 316
The Equal Opportunities Commission 316
Remedies 318
Time limitsf or complaints 319
viii Confenfs
12 Raciald iscrimination 321
General information 32 1
W h a t is racial discrimination? 322
Direct discrimination 322
Indirect discrimination 323
Victimisation 325
Discrimination against job applicants and employees 326
Genuine occupational qualification 327
To whom does the 1976 Act apply? 328
Case law 33 1
Questions and replies 334
The Commissionf or Racial Equality (CRE) 335
Remedies and time limits 335
13 Disability discrimination 337
General information 337
Meaning of ’disability’ and ’disabled person‘ 337
Unlawful discrimination 340
Discrimination in recruitment 340
Discrimination in employment 341
Dismissing the disabled employee 341
Employer’s duty to make adjustments 342
Codes of practice and guidance 343
Obtaining redress 343
Questions and replies 343
Complaint to an employment tribunal 344
Related provisions and legislation 345
Case law 346
14 Maternity, parental and family leave 350
General information 350
Statutory rights summarised 350
Part 1: Rights in pregnancy and maternity 352
Ordinay maternity leave 352
Meaning of ‘childbirth’ 352
Contractual vis-h-vis statutoy rights 353
Change of employer 353
Notification procedure 354
Premature birth 355
Pregnancy-related illnesses 355
Contractual rights during ordinay maternity leave 356
Return to work after ordinay maternity leave 357
Contents ix
A n early return to work? 358
Dismissal during ordina y maternity leave 358
Redundancy duringo rdina y maternity leave 358
Additional maternity leave 36 0
Not$cation procedure 360
Contractual rights during additional maternity leave 361
Dismissal during additional maternity leave 362
Redundancy duringa dditional maternity leave 362
Return to work after additional maternity leave 363
A n early return to work? 364
Seeking confirmation of employee’s intention to return 364
Failure to permit a return to work 365
Statuto ry maternity pay( SMP) 367
Time off for antenatal care 36 8
Suspension on maternityg rounds 36 9
Restrictions on night work 371
Rest facilities- pregnant employees and nursing mothers 37 2
Written reasons for dismissal 37 2
Dismissing a maternity leave replacement 373
Part 2 Parental Leave 374
Nature of right 374
How much leave can be taken at a time? 375
Contractual and statutory rights duringp arental leave 377
Returning tow ork after parental leave 377
The ‘fallback’ scheme 37 8
Unfair dismissal 380
Detrimental treatment 381
Further information 381
Part 3: Time off for dependants 382
Meaning of ’dependant‘ 383
How much time off is reasonable? 383
Complaint to an employment tribunal 384
Protection from detriment 384
Unfair dismissal 385
Further information 385
15 Miscellaneouss tatutoryr ights 386
Suspension on medical grounds 386
Time off work 388
Time offfor trade union duties 390
Time o f f o r trade union activities 392
Time o f f o r public duties 394