1. 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. This is one reason why tribunal judgments (also known as first instance decisions) are not routinely published.

In Northern Ireland, appeals from industrial tribunals go straight to the Court of Appeal. However, judgments of the EAT are strongly persuasive on these 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 Union law, and UK law must be interpreted so as to comply with European Union 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.

EU law directives have been issued in a wide variety of areas affecting employment rights, including:

• Business transfers (see Chapter 12);

• Public procurement (see Chapter 12);

• Redundancy consultation (see Chapter 11);

• Rights on an employer’s insolvency (see Chapters 11 and 12);

• Information and consultation (see Chapter 5);

• Equal pay and equal treatment (see Chapter 6);

• Agency workers (see Chapter 2);

• Part-time workers (see Chapter 2);

• Fixed-term employees (see Chapter 2);

• Working time (see Chapter 4);

• Free movement of labour (see Chapter 5);

• Equal access to social security benefits;

• Health and safety at work; and

• Data protection.

In some circumstances, public sector workers can bring claims in the UK based on EU law even if regulations have not yet been made in the UK to fully enact the relevant EU directive. The process of relying on the rights laid down in European Union law is known as “direct effect”. To claim direct effect, the right under EU law must be precise.

Where regulations are based on an EU Directive, tribunals are expected to adopt a liberal (as opposed to a literal or restrictive) approach to interpreting the meaning of the regulations, in order to achieve the purpose of the Directive, even adding or deleting words when necessary. When a court or tribunal is unsure whether UK law has implemented an EU directive correctly, it can refer the question to the ECJ for a final ruling. The ECJ usually takes many months to reach a decision. It is assisted by a senior legal officer, the Advocate General (AG) of the ECJ. Before the ECJ gives its ruling, the AG publishes a written opinion on the issues. The ECJ is not bound to follow the AG’s opinion but it usually does.

Another important source of rights is the European Convention on Human Rights (the Convention) which the UK, like almost all European states, has signed. When deciding employment-related claims, employment tribunals must take into account the case law of the European Court of Human Rights (ECHR). The most relevant human rights in 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 (which can include reputation and the ability to develop professional relationships);

• 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.

In the UK, these rights are codified into English law by the Human Rights Act 1998 (HRA 98). The Conservative majority government elected in the 2015 general election has committed to repeal HRA 98, and to replace it with a “British Bill of Rights” (see box on page 17).

Human rights are based on core principles such as dignity, fairness, equality, respect and autonomy. Some human rights, such as the right not to be tortured, are absolute. In other words they can never be violated without breaking international human rights law. However, most human rights are not absolute and can be interfered with in certain circumstances. For example, an employer that decides to use covert surveillance to investigate suspected theft is likely to infringe the right to respect for privacy (Article 8). However, the employer will be able to defend itself against any allegations based on convention rights by showing that the interference with the right to privacy was “proportionate” (i.e. reasonable) and that the purpose of the privacy intrusion was to meet a convention objective, in this example that of preventing crime or fraud.

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).

Human rights law provides a vital source of protection for trade union rights in the UK. Unions around the world have brought claims to the ECHR to secure the right to belong to a trade union and to engage in trade union activities free from victimisation. In recent years, crucially the ECHR has confirmed that the right to freedom of association includes both the right to engage in free collective bargaining and the right to strike (see Chapters 5 and 9).