Introduction to the employment law system

Employment rights in the UK have two main sources. The first is legislation enacted by Parliament in the form of Acts of Parliament or regulations. This is referred to as statutory law (from “statute”— another word for a piece of legislation). The second is common law (also referred to as case law), which has developed over the years from decisions made by judges in specific cases.

The system of legal precedent means that lower courts are bound by the decisions of higher courts. In an employment law context, employment tribunals must follow the decisions of the Employment Appeal Tribunal (EAT), which must in turn follow those of the Court of Appeal (or Court of Session in Scotland). Decisions of the employment tribunal (the first tier of courts) are not binding on other tribunals. For this reason, tribunal judgments (also known as first instance decisions) are rarely published.

In Northern Ireland, appeals from industrial tribunals go straight to the Court of Appeal. However, judgments of the EAT are strongly persuasive on the tribunals, which means they can still be used to support a claim. The Supreme Court (which used to be known as the House of Lords) is the highest court in the UK, so the principles decided there will apply to all courts and tribunals.

The UK must also comply with European law, and UK law must be interpreted so as to comply with European law as far as possible. The Court of Justice of the European Union (ECJ) deals with the interpretation of European law, and its decisions are binding on all courts and tribunals in the UK, even where the case involves 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, the right under EU law has to be precise.

Where regulations are based on an EU Directive, tribunals are expected to adopt a liberal and “purposive” (as opposed to a literal or restrictive) approach to interpreting the law, with a view to achieving the main purpose of the Directive.

Another important source of rights is the European Convention on Human Rights which the UK, like almost all European states, has signed. In deciding employment-related claims, employment tribunals must take into account the case law of the European Court of Human Rights (ECHR). The main human rights relevant to an employment context are:

• Article 6: the right to a fair trial;

• Article 8: the right to respect for private and family life, home and correspondence;

• Article 9: the right to freedom of thought, conscience and religion;

• Article 10: the right to freedom of expression;

• Article 11: the right to freedom of association; and

• Article 14: the right to freedom from discrimination.

Human rights are based on core principles such as dignity, fairness, equality, respect and autonomy. Some human rights, like the right not to be tortured, are absolute, but most human rights are not absolute and can be interfered with in certain circumstances. For example, the right to respect for private and family life is likely to be infringed by an employer using covert surveillance on a worker suspected of “malingering”. But this interference can be justified where the employer can point to a legally permissible reason identified in the Convention, such as the prevention of crime (fraud), as long as the employer’s response is proportionate. For more on this see Chapter 10.

Sometimes convention rights clash with each other, so that the ECHR must engage in a balancing exercise. A good example is the right to manifest your religion at work. This right is not absolute but instead must be balanced with the fundamental rights of others, such as the right of LGBT workers to freedom from discrimination (see Chapter 6).