Although, English employment law is derived from legislation, it is still a traditional common law system in which Courts apply legal precedent to the facts before them, thereby creating new law. This means that employment law in the UK is fast moving and constantly evolving based on judgments from the Employment Tribunal, Civil Courts and European Courts.
UK employment law sits somewhere between the U.S. and mainland European models. There is no concept of “at will” employment – employees with qualifying levels of continuity of service can only be dismissed on certain legally prescribed grounds (e.g. misconduct, redundancy etc.) and in most circumstances only after a fair and reasonable disciplinary or consultation process has been followed. Failure to comply with the legal requirements can give rise to claims for unfair dismissal.
Did you know?
- 29.2% of employees were covered by collective bargaining arrangements in 2012
- The number of employees who are trade union members fell to 25.0% in 2014
- The average employee was off work due to illness for 4.4 days in 2013
- Statutory minimum paid annual leave in the UK is 28 days (including public holidays)
- Almost 700,000 people in UK are on “zerohours contracts”
- A new shared parental leave system was introduced in 2015 under which the mother and her partner can share and divide a period of up to 50 weeks absence if the mother gives up her right to take maternity leave
- Commission and overtime must be included within the calculation of holiday pay following a line of case law which remains ongoing
Restructuring programmes: key issues
- Employee representatives do not have codetermination rights and consultation periods are generally shorter than mainland Europe.
- Collective consultation (lasting at least 30 or 45 days, depending on employee numbers) will, however, be triggered if an employer proposes to make more than 19 employees at any one workplace redundant. Failure to collectively consult where it is required can give rise to claims for protective awards, which can be up to 90 days’ full pay per affected employee.
- When identifying which employee(s) to make redundant, the employer should carry out individual consultation meetings and apply, where appropriate, a relatively objective set of selection criteria to mitigate against the risk of unfair dismissal claims.
- The employer will also need to identify whether any proposed measures would vary an existing contractual term within employment contracts and devise a strategy accordingly, depending on its appetite for risk (e.g. seek consent, implement unilaterally or terminate and re-engage).
- Protection afforded to employees for ordinary unfair dismissal is somewhat weaker in the UK than in Germany or France, for example.
- There are no “Works Councils” (at least not in the form you would expect to see in mainland Europe) and industrywide collective bargaining agreements are less common.
- The UK’s recent vote in favour of leaving the European Union may well give rise to some changes in English employment law over the coming years, as legislation in areas deriving from EU law (governing, for example, holiday pay and agency workers) may be reviewed, amended and in some cases even repealed.
This is part of the Bird & Bird: A European view on Employment Law series.