Introduction

Employment law continues to change and expand with the introduction every year of new legislation and judgments that introduce new rights and affect the way that pre-existing rights operate.

Since the last edition of Law at work was published in June 2011, the coalition government has introduced the right to equal treatment for agency workers, doubled the qualifying period for unfair dismissal claims, and doubled the amount of costs and deposit orders that a tribunal can award. The government has also introduced a variety of changes to tribunal procedures such as allowing judges to hear unfair dismissal claims alone (i.e. without lay members assisting), and there are further substantial changes.

Some of the proposed changes, including a proposal to radically reduce the size of compensatory awards in unfair dismissal cases, appear in a draft bill, the Enterprise and Regulatory Reform Bill, making its way through Parliament.

In addition, there have been a large number of important judicial decisions on subjects including:

• dismissal and re-engagement on new terms;

• establishing employment status;

• discriminatory dress code rules;

• legal representation at disciplinaries;

• suitable alternative work during a redundancy exercise;

• when a tribunal may permit an adjournment;

• tackling negative references from ex-employers;

• refusing to carry out an instruction on health and safety grounds;

• TUPE and outsourcing;

• changes to terms and conditions after a TUPE transfer;

• collective consultation; and

• redundancy selection.

Law at work 2012 is the 24th edition of the Labour Research Department's comprehensive legal guide, providing the basic information that will help establish your rights in the workplace and help you decide whether there is a legal claim. This booklet is not designed to enable an individual or union rep to take a claim right through the court process, but it indicates where the relevant law can be found and gives examples of the areas that are covered.

Law at work 2012 clearly explains the key areas of employment law so that representatives and individuals can identify their legal rights and, unlike most other publications on employment law, it examines the law from the perspective of trade unions and workers. The Labour Research Department's Case law at work series of booklets provides summaries of relevant cases in much greater detail and can be read in conjunction with this booklet.

Most trade unions offer their members a legal advice service and any member or union rep contemplating taking a legal case should contact their union first. In some unions, tribunal cases will be handled internally at district, regional or even head office level.

Differences in law across the UK

Law at work refers to the legislation as it applies to England, Wales and Scotland (although there are some minor variations in Scotland). However, the principles also apply in Northern Ireland which has its own legislation but with a similar structure.

In England and Wales, decisions from the employment tribunal go to the Employment Appeal Tribunal (EAT) and from there to the Court of Appeal and then the Supreme Court (formerly the House of Lords). In Scotland, appeals from the employment tribunal go to the EAT in Scotland, and from there to the Court of Session and then the Supreme Court.

A significant difference between the Northern Ireland legal system and those in England and Wales and Scotland is that tribunals in Northern Ireland are still called industrial tribunals and there is no Employment Appeal Tribunal (EAT). Appeals from industrial tribunals go straight to the Northern Irish Court of Appeal (and from there to the Supreme Court).

Decisions from the two EATs are binding on each other and on employment tribunals in England, Wales and Scotland, and are strongly persuasive in industrial tribunals in Northern Ireland.

Judgments of the Court of Session and the two Courts of Appeal are not binding on each other, but bind all courts and tribunals below them.

Legislation

Most employment rights are statutory rights, so called because they come from a statute, which is simply another name for a piece of legislation. Anyone bringing a claim in a tribunal should acquaint themselves thoroughly with the appropriate sections of the statutes which are always given.

For example, where this booklet mentions "section 1, ERA", it means that the relevant law is to be found in the first section of the Employment Rights Act 1996. (See Further information at the end of this booklet for details of where to obtain copies of the statutes).

Relying on the exact wording of the statute and showing its relevance to your argument is essential to a successful tribunal claim.

The volume of legislation governing employment relationships has grown dramatically over the last 20 years or so. In 2004, the government decided to introduce legislative changes only twice a year, on 6 April and 1 October. However, some legislation originating from European Union (EU) law may be introduced on other dates.

Case law

The law also changes constantly as a result of decisions made by judges. This is known as case law and examples with their case references can be found throughout this booklet.

Reading a case reference

Gibson v East Riding of Yorkshire Council [2000] IRLR 598 tells you that the claimant was called Gibson; the case was brought against East Riding of Yorkshire Council; and the judgment was reported in the law reports for 2000. The letters IRLR stand for Industrial Relations Law Reports, and the case was reported on page 598. Other law reports include the Industrial Cases Reports (ICR).

If the case has not been reported in the law reports, or if it is also available free of charge online, the case number is generally quoted. For example, a case reference beginning "EAT" or "UKEAT" is from the Employment Appeal Tribunal; Court of Appeal decisions will include "EWCA". For details of how to find cases, see Further information at the end of this booklet.

European law

UK employment law is heavily influenced by European law. Judgments from the European Court of Justice (or ECJ for short) bind the UK courts - even where the case is brought from another EU state.

Public sector workers can bring claims in the UK based on EU law. This process is known as direct effect and gives direct access to the benefit laid down in European law. To claim direct effect, however, the right under EU law has to be precise.

The ruling of the ECJ in Francovich v Italian Republic [1992] IRLR 84, gave private sector workers the right to sue their own state if it fails to properly implement European law. In the UK, such claims must be initiated in the High Court, not the employment tribunals. The claim would be for damages resulting from the state's failure to introduce the right under European law, rather than a claim for the right itself.

Civil liberties and employment law

The Human Rights Act 1998 implemented the European Convention on Human Rights into UK law. It gives citizens the right to challenge public authorities where they act in conflict with human rights, including the right to freedom of association, expression and assembly, the right to a private life and the right to be protected from discrimination.

Claims against a public authority for a breach of human rights law can be taken in the UK courts. It should also be possible to use the Act to challenge the actions of public sector employers where these infringe human rights principles.

In the case of O'Flynn v Airlinks EAT/0269/01, the EAT held that a company policy of zero tolerance on alcohol and drugs, which made it clear that the employer would randomly test employees and dismiss anyone who failed the test, was unlikely to be a breach of the Human Rights Act. The policy was reasonable, it said, taking account of the employer's legitimate safety concerns.

In the case of X v Y EAT/0765/02 [2003] IRLR 561, the EAT held that a person who was dismissed for failing to inform his employers that he had been charged with gross indecency did not have the right to protection under the Human Rights Act. The activities for which he had been charged had occurred in a public place and his dismissal as a result of the charge could not be said to have breached his right to a private life.

The case of Pay v United Kingdom (Application No. 32792/05) involved a probation officer who specialised in the rehabilitation of sex offenders. Following an anonymous tip-off, photographs of Mr Pay engaging in sadomasochistic activities were found on the internet. Mr Pay, having declined to cease these activities and terminate the associated business that he ran, was dismissed. The European Court of Human Rights decided that although Mr Pay's right to respect for his private life and right to freedom of expression had been breached, due to the sensitive nature of his post those breaches and the decision to dismiss were justified.

In McGowan v Scottish Water UKEAT/0007/04 [2005] IRLR 167, the EAT held that an employer investigating suspected criminal activity (falsification of time sheets) had the right to protect the assets of the company and the surveillance carried out in that case was not disproportionate, therefore it did not amount to a breach of Article 8 rights.

But in the case of Copland v UK (application 62617/00), the European Court of Human Rights said that monitoring an employee's telephone calls, emails and internet use was a breach of her human rights as she had not been warned that this would happen and had a reasonable expectation of privacy at work.

See Chapter 10: Dismissal for a discussion of human rights legislation in the context of claims for unfair dismissal.

A number of cases brought by unions are currently awaiting determination by the European Court of Human Rights. In particular, the Rail, Maritime and Transport Union (RMT) has a claim before the European Court of Human Rights concerning the restrictions on taking industrial action in the UK. Specifically, it is arguing that draconian balloting and notification requirements breach the right to freedom of association.

The EU Charter of Fundamental Rights, although not legally binding, has been adopted by EU member states including the UK. It recommends that member states guarantee the right to equality and non-discrimination and the right to freedom of thought and expression, including the right to take strike action.

The Regulation of Investigatory Powers Act 2000 also limits the extent of employers' rights to intercept employees' emails, faxes and phone calls. Regulations accompanying the Act state that the right to intercept messages only exists where consent has been given, where there is a legitimate business interest, or in cases where the employee is off work sick or on holiday.

Employees also have rights under the Data Protection Act 1998, which cover information stored in electronic form and paper files or documents. Employees can ask to see any stored personal information held by the employer.

You may see copies of your job application, references, bonus assessments, sickness and other attendance records and any email communications which are about you, or even simply refer to you.

Employers can charge a fee for access, which is currently set at a maximum of £10 for each request. The employer must abide by certain data principles designed to ensure that the information stored is not excessive and is kept securely.

The Information Commissioner's Office provides information as well as Codes of Practice covering privacy and electronic communications and data protection, which are available on their website at: www.ico.gov.uk/tools_and_resources.aspx.