LRD Booklets January 2007

Case law at work - 3rd edition

Introduction

There are over 70 pieces of employment legislation that govern workers' rights at work, from the right to be paid a minimum wage, to anti-discrimination laws giving workers the right not to suffer discrimination in the workplace. While this legislation sets out the basic rights, it rarely gives enough detail to cover all the circumstances in which it will need to be applied and tribunals care called upon to decide how it should be interpreted in practice. In addition, they may be asked to determine the terms of the employment contract if these are ambiguous or uncertain. This is the purpose of case law.

For example, the Employment Rights Act 1996 states that in order for a dismissal to be fair, the employer must have a fair reason for the dismissal, and the dismissal must be reasonable in all the circumstances. But it does not give much guidance as to what would make a dismissal "reasonable". Consequently there have been numerous cases in which tribunals and the higher courts have had to consider the test of reasonableness in a case of unfair dismissal.

Even before the facts in an unfair dismissal claim can be heard, the person who has been dismissed must establish that they were an employee - the right not to be unfairly dismissed does not apply to workers or the self-employed. Tribunals therefore frequently have to determine as a preliminary issue whether or not the claimant meets the definition of "employee". A significant amount of time has again been spent by the courts and tribunals over the past year in establishing individuals' employment status (see Chapter 2).

The LRD booklet Law at work is a guide to all the key areas of employment law, including many significant cases. However, it is beyond the scope of Law at work to provide further details of the cases or to include more than the key decisions. Case law at work 2006-07 is the third edition in the Case law series and is a unique source of information on recent employment law cases. The volumes, which are designed as a companion to Law at work, can be built into a library and used in subsequent years, as case law remains valid unless it is overruled by later judgments.

It is important for any union representative to know how employment legislation has been interpreted by the courts and how the law has been changed by recent judgments. Case law at work 2006-07 gives details of recent cases that have been decided by the Employment Appeals Tribunal (EAT), the Court of Appeal (CA), the House of Lords (HL) and the European Court of Justice (ECJ), many of which have not been reported in other publications, with the exception of LRD's Workplace Report.

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 EAT, who must follow those of the Court of Appeal. The House of Lords is the highest court in the UK, so the principles decided here will apply to all courts and tribunals beneath it.

In Northern Ireland, which has a slightly different tribunal system to the rest of the UK, employment cases are heard by industrial tribunals, which are bound by decisions of the Northern Ireland Court of Appeal. There is no EAT in Northern Ireland but decisions of the EAT in Great Britain will be strongly persuasive in an industrial tribunal.

Decisions made by employment tribunals are not binding on other tribunals and they are not included in this booklet. The European Court of Justice deals with the interpretation of European law - all tribunals and courts can refer a case to the ECJ on a particular issue.

The tribunal or court reference is given at the end of each case. Decisions are published on the web: EAT cases at www.employmentappeals.gov.uk; Court of Appeal at www.courtservice.gov.uk; House of Lords at www.publications.parliament.uk, and ECJ at www.europa.eu.int/cj. Decisions of the Central Arbitration Committee are at www.cac.gov.uk.

Where cases have been reported in the Industrial Relations Law Reports (IRLR) that reference is also given.