1. THE EMPLOYMENT LAW SYSTEM

Employment rights in the UK come from 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”, which is 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. This means that employment tribunals must follow decisions that have been made by the Employment Appeal Tribunal (EAT), which must 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 (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 mean 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 here 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, however, the right under EU law has to be precise.

Where regulations are based on an EU Directive, tribunals are expected to adopt a purposive (as opposed to a literal or restrictive) approach to interpreting the law. This basically means that when they interpret regulations they must keep in mind the need to achieve the underlying objective of the Directive. For example, the Transfer of Undertaking (Protection of Employment) Regulations (TUPE) were enacted to give effect to the Acquired Rights Directive(77/187). As such, tribunals must interpret TUPE to give effect to the Directive’s objective, namely: “safeguarding employees’ rights in the event of transfers of undertakings or businesses” (see Chapter 12).

In addition, the European Convention on Human Rights is an increasingly important weapon in the battle to protect workers’ rights. 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 that are 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.

The growing importance of these fundamental rights and how they relate to statutory employment laws and to each other is one of the key themes behind much of the new case law appearing in this edition of Law at Work.

Human rights are based on core principles like 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 engaged by surveillance carried out by an employer who suspects a worker of “malingering”, but interference with that right can be justified for a legally permissible reason identified by 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.