Employment Law in Context

665 Pages·2003·2.311 MB·English

by  Brian Willey

Employment Law CYAN MAGENTAYELLOW BLACK
Brian Willey
Brian Willey
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An Introduction for HR Professionals u l
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This book is ideal for students taking an employment law module as part of a CIPD programme, an HRM or a fo
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to increase their knowledge of the subject.
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Employment law is a matter of increasing importance for managers and human resource professionals. Approaching r t
the subject from a human resources rather than a law perspective, this book aims to inform about the context in o Employment Law in Context
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which employment law is enacted and promotes understanding of: e L
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• The application of the law to HRM io
• The social purposes behind the legislation n w
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• The contextual issues that affect the implementation of the law ls
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The balance between knowledge of legal provisions and consideration of human resources is explored using a

range of exercises and case studies, with the intention of giving HR and general managers the confidence to
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analyse and deal with a greater variety of problems.
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Each chapter follows a common framework which contains the following: n
• Learning objectives t
• Context – social, economic, political and technological e
• Legal framework x
• Policies and practices, looking at the application of the law t
• Case studies and scenarios, inviting the reader to apply the concepts and legal provisions
second edition
Brian Willeyis a Principal Lecturer in Employment Relations and Employment Law; and Deputy Course Director of
the MA/Postgraduate Diploma in Human Resource Management in the Faculty of Business at Kingston University.
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"I am impressed by the development of sociological debates alongside the legal debates as many legal l
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texts omit this important area." y
Alan J Ryan, Senior Lecturer in Human Resource Management,
De Montfort University Faculty of Business and Law
Cover Image ©Ian Willey
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Employment Law
in Context
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Employment Law
in Context
An Introduction for HR Professionals
BRIAN WILLEY
Second edition
Pearson Education Limited
Edinburgh Gate
Harlow
Essex CM20 2JE
England
and Associated Companies throughout the world
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First published 2000 by Pitman Publishing, a division of Pearson Professional Ltd
Second edition published 2003by Pearson Education Limited
© Brian Willey 2000, 2003
The right of Brian Willey to be identified as author of this work
has been asserted by him in accordance with the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this publication may be reproduced, stored
in a retrieval system, or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without either the prior
written permission of the publisher or a licence permitting restricted copying
in the United Kingdom issued by the Copyright Licensing Agency Ltd,
90 Tottenham Court Road, London W1T 4LP.
ISBN: 0 273 67859-0
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available fro m the British Library
10 9 8 7 6 5 4 3 2 1
08 07 06 05 04 03
Typeset in 9.5/12pt Stone Serif by 35
Printed by Ashford Colour Press Ltd., Gosport
The publisher’s policy is to use paper manufactured from sustainable forests.
Contents
Preface xiv
Publisher’s acknowledgements xvii
List of abbreviations xviii
Table of cases xx
Table of statutes xxvi
Table of statutory instruments xxviii
Table of statutory codes of practice xxx
Table of European Community Law xxxi
List of useful websites xxxiii
1 An introduction to employment law 1
Learning objectives 1
1.1 Structure of the chapter 1
1.2 Introduction 2
Substantive aspects · Procedural aspects
Exercise 1.1 Future changes – where will the UK be in 2006?
Political perspectives
1.3 The nature of legal regulation 8

Standards in law
Exercise 1.2 How much freedom of expression?
Processes for complaint · Effective remedies
1.4 The nature of voluntary regulation 31
Employer discretion · Grievance procedures · Disciplinary procedures ·
Consultation and collective bargaining · Third parties
1.5 Some underpinning principles 34
Substantive issues · The processes of employment relations
1.6 Conclusion 40
Further reading · References
Part One The changing employment relationship 43
Introduction to Part One 45
Economically driven change · Changes in employment status ·
‘New model’ employment regulation · Conclusion
v
vi Contents
2 Regulating the employment relationship 47
Learning objectives 47
2.1 Structure of the chapter 47
2.2 Introduction 47
Defining the employment relationship · Frontier of control ·
The parties’ expectations · Three sets of ‘rules’ · The role of the
contract of employment
2.3 The context 50
Concepts of work and employment · The psychological contract ·
Individualism and collectivism · Diversity of employment status
Exercise 2.1 A flexible workforce?
2.4 The legal framework 62
Introduction · Status: employee, worker or independent contractor? ·
The characteristics of the contract of employment · The terms of a
contract of employment · Written information about contracts of
employment · Terminating a contract of employment · Employment
protection for ‘atypical’ workers
2.5 Conclusion 88
Exercise 2.2 Who hasemployment rights?
References
3 Managing change in the employment relationship 91
Learning objectives 91
3.1 Structure of the chapter 91
3.2 Introduction 92
3.3 Context 92
Private and public-sector change: an overall view · The

organisation’s culture · Strategic considerations · Operational
factors · Economic considerations · Employment relations matters ·
Tensions with legal requirements · The incidence and experience
of changes
3.4 The legal framework 102
Variation of contracts of employment · Flexibility in existing
contractual terms
Exercise 3.1 Some problems of managing variation
Transfers of undertakings
Exercise 3.2 Some problems of managing transfers ofundertakings
Redundancy and redeployment
Exercise 3.3 Some problems in managing redundancies
3.5 Employment policies and practices 126
Variation · Transfers · Managing redundancies
Case study 3.1
Exercise 3.4
Further reading · References
Contents vii
Part Two Discrimination and equal opportunities 133
Introduction to Part Two 135
The concepts · The law · Voluntary action by employers · Conclusion ·
Further reading · References
4 Sex discrimination in the workplace 149
Learning objectives 149
4.1 Structure of the chapter 149
4.2 Introduction 150
Historic situation of women · Changing perspectives
4.3 The context 152
Participation in the labour market · Women’s pay · Social trends and
influences · Political approaches
4.4 The legal framework 160
Structure of discrimination law · Grounds of unlawful discrimination ·
Access to statutory rights · Direct discrimination · Indirect
discrimination · Claims relating to equal pay · Victimisation · Positive
action and positive discrimination · Special provisions · Liability ·
Enforcement procedures · Remedies
4.5 Employment policies and practices 180
Human resource strategy · Recruitment and selection · Terms and
conditions of employment · Working time · Training and development ·
Promotion and career progression · Dress and appearance ·
Retirement and pensions · Dismissal
4.6 Conclusion 187
Exercise 4.1 Some d iscrimination problems
Further reading · References
5 Race discrimination in the workplace 191
Learning objectives 191
5.1 Structure of the chapter 191
5.2 Introduction 192
Population profile of Britain · The concepts
5.3 The context 198
The social background · Political approaches · Labour-market
participation · Social issues
5.4 The legal framework 205
Grounds for unfair discrimination · The areas of employment
protection · Direct discrimination · Indirect discrimination ·
Victimisation · Special provisions: ‘genuine occupational qualification’ ·
Positive action and positive discrimination · Liability · Enforcement ·
Remedies · Employing workers from overseas
viii Contents
5.5 Employment policies and practices 220
Human resource strategy · Recruitment and selection · Pay and
benefits · Working time · Training and development, promotion and
transfers · Dress codes · Dismissal
Case study 5.1
Exercise 5.1
Further reading · References
6 Disability discrimination in the workplace 229
Learning objectives 229
6.1 Structure of the chapter 229
6.2 Introduction 230
6.3 The context 230
Defining disability · The social context · Disability and the labour
market · The employment context · Technological context · The
political and historical background · The developing political and
legislative context · Social welfare support
6.4 The legal framework 242
The coverage of the legislation · The meaning of disability · The
meaning of discrimination · The duty to make reasonable adjustments ·
Liability · Burden of proof · Enforcement procedures · Remedies ·
The Disability Rights Commission · Managing long-term
sick absence
6.5 Employment policies and practices 253
Management approach · Implications for contracts and agreements ·
Practical steps: the 1996 Code of Practice
Exercise 6.1 Some discrimination problems

Further reading · References
Part Three Regulating performance and conduct 259
Introduction to Part Three 261
7 Harassment and bullying at work 263
Learning objectives 263
7.1 Structure of the chapter 263
7.2 Introduction 264
Growing concern about harassment · Definitions
7.3 The context 265
Power relations · Cultural factors · The characteristics of the workplace ·
The parties involved · Possible consequences
Contents ix
7.4 The legal framework 269
The contract of employment · European equal treatment legislation ·
Direct discrimination and detriments · Dismissal · Liability for the
harassment · Harassment by third parties · Action against the
perpetrator · Possible remedies in law for the victim
7.5 Employment policies and practices 277
Defining harassment and bullying · Who might be possible victims? ·
Approach to allegations of harassment and bullying · Managerial
roles and responsibilities · Informal procedures and counselling ·
Role of grievance procedure · Training · Communications · Role of
disciplinary action · Consultation with trade unions · Monitoring
7.6 Conclusions 281
Case study 7.1
Exercise 7.1
Further reading · References
8 Information, privacy and surveillance 284
Learning objectives 284
8.1 Structure of the chapter 284
8.2 Introduction 285
8.3 The context 285
Technological developments · Social values and human rights ·
Economic and security considerations
8.4 The legal framework 288
The Data Protection Act 1998 · Privacy and surveillance ·
Whistleblowing and public interest disclosure legislation
8.5 Employment policies and practices 296

The Data Protection Act: the Employment Practices Data
Protection Code · Privacy and surveillance · Whistleblowing
8.6 Conclusion 312
Further reading · References
9 Discipline and dismissal 313
Learning objectives 313
9.1 Structure of the chapter 313
9.2 Introduction 314
9.3 The context 315
The nature of the employment relationship · The common law of
contract · Social standards · Political action · Assessing the law’s
effectiveness
9.4 The legal framework 321
Introduction · The nature and purpose of discipline at work · Circumstances
in which contracts of employment end · Fair and unfair dismissal ·