Derecho laboral Employment law

A reading exercise. Allow yourself 12 minutes. (Answers below the text.)

Exercise 1

(a) What type of situations does an employment lawyer work on?

(b) Do you think UK and Spanish employment law are similar? If so, why are they similar?

Exercise 2

Read paragraphs 1, 2 and 3:

(a) Were your answers to Exercise 1 correct?

(b) Is it important for employment lawyers to be familiar with judge-made law?

(c) Which words or phrases are formal? Which are informal? dismiss, fire, sack, termination of employment.

Exercise 3

Read the remaining paragraphs:

(a) True or false? In an unfair dismissal case the Tribunal may reverse the employer’s finding that the employee stole company money.

(b) True or false? In a race discrimination case the Tribunal may reverse the employer’s finding that the employee stole company money.

(c) True or false? If Miss Smith adduces evidence that shows she was dismissed shortly after she had told her employer she was pregnant, the employer may have to prove the dismissal was not pregnancy-related.

(d) Why has employment law grown in importance over the last few years.

(e) What does ‘settled out of court’ mean?

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Employment Law in the UK Employment law regulates the competing interests of workers and employers. It is mostly statute law, although the common law is used to interpret and apply the statutory provisions. For example, most workers provide their services under a contract of employment, the existence of which may be disputed by an employer. In the event of such a dispute, the court or tribunal will use common law principles to determine the existence or otherwise of an employment contract, and its specific terms and conditions.

Employment lawyers advise on, amongst other things, employment contracts, restrictive covenants, recruitment procedures, equality (non-discrimination) policies, collective consultations, transfers of undertakings, pensions and dismissals. They must be familiar with domestic and European law, since the EU seeks to harmonise a number of employee rights across the member states.

Many employment disputes stem from the termination of a person’s employment. In layperson’s language, to terminate employment is to fire or to sack, or to dismiss. The law uses the latter term and speaks of ‘wrongful dismissal’ and ‘unfair dismissal’. Wrongful dismissal is a common law action for breach of contract, eg, the employer has failed to comply with the contractual notice period. Unfair dismissal is a creation of statute law. An employee who has worked for the statutory qualifying period –currently one year- enjoys protection from unfair dismissal. He or she can only be dismissed for one of five potentially fair reasons, which include conduct, capability and redundancy. Employment may be terminated by summary dismissal, ie, instant dismissal, or by dismissal with notice, ie, the employee works or receives wages for the contractual notice period. Summary dismissal may only be effected in cases of gross misconduct, common examples of which are fighting and theft.

In most cases the dismissal is expressly communicated to the employee. However, there are occasions when the dismissal is constructive (not expressed but derived from inference), ie, the employer breaches the employment contract in a way that entitles the employee to treat himself or herself as dismissed. An example would be an employee whose wages are cut by 25% without consent – a fundamental breach of contract.

All workers enjoy protection against unlawful discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation. The latter three grounds are unlawful in UK law following the implementation of EU Directives. The last few years have seen a big increase in the number of unlawful discrimination cases, particularly complaints of harassment and pregnancy-related dismissals.

Complaints of unfair dismissal and unlawful discrimination are heard in the Employment Tribunal. When deciding an ordinary unfair dismissal claim, the Tribunal acts as an appeal court that reviews the employer’s decision. The Tribunal does not rehear the evidence that was part of the employer’s internal dismissal procedure. Rather, it examines the reasonableness of the decision to dismiss and the procedure used by the employer in reaching that decision. If the ‘reasonable employer acting reasonably’ could have dismissed the employee in the circumstances, the dismissal is fair. The Tribunal cannot and must not substitute its own view of the facts for those of the employer. In contrast, in a discrimination claim the Tribunal is free to hear and reach findings on all the evidence, and if the claimant establishes a prima facie case of discrimination, the employer must prove that it did not discriminate.

Twenty years ago the Employment Tribunal could not make a compensatory award exceeding £11,000. That upper limit was removed in discrimination cases in 1993/94 and later modified in unfair dismissal cases. These days the maximum possible award in an unfair dismissal case is £80,400, and there is no limit in unlawful discrimination claims. Consequently employment law has become big business. In 2010, the average award for unfair dismissal was £9,120, £19,499 for sex discrimination and £52,087 for disability discrimination. (And those figures do not reflect the high-value cases that are settled out of court.) In the past employment lawyers were the poor relations of the legal world, but now they are much in demand.

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ANSWERS:

Exercise 1.

(a) They work on matters such as  employment contracts, restrictive covenants, recruitment procedures, equality (non-discrimination) policies, collective consultations, transfers of undertakings, pensions and dismissals.

(b) UK and Spanish employment law are similar in several respects because both countries are member states of the EU, and the EU seeks to harmonise a number of employee rights across the member states.

Exercise 2.

(a) …

(b) Yes, because the Employment Tribunal often applies common law principles when reaching its decision. (‘In the event of such a dispute, the court or tribunal will use common law principles…’)

(c) Fire and sack are informal; dismiss and termination of employment are formal.

Exercise 3.

(a) False. (‘The Tribunal cannot and must not substitute its own view of the facts for those of the employer.’)

(b) True. (‘…in a discrimination claim the Tribunal is free to hear and reach findings on all the evidence…’)

(c) True. (‘…if the claimant establishes a prima facie case of discrimination, the employer must prove that it did not discriminate.’)

(d) Because of the large increase in the size of financial awards.

(e) A case is settled out of court when the parties reach an agreement and the dispute is resolved before the  tribunal hears the case or arrives at a decision.

The common law

A listening exercise that should take less than 10 minutes.

If you’re interested, just click and follow the instructions.

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Answers:

1. Common law is judge-made law.

2. Equity is a system based on conscience and fair dealing.

3. True.

4. Statute law – law created by Parliament.

Transcript:

After 1066 and the Norman conquest, the new rulers didn’t try to impose their legal system on Anglo-Saxon England. William I issued charters confirming that the old laws remained in effect. Those laws, based on custom, varied from place to place. There was no unitary body of law that applied across England.

In the 12th century, the king’s judges were sent to the shires to oversee the administration of law. The royal judges travelled to various parts of England where they resolved local disputes before returning to London.

Once in the capital, the judges discussed the cases they had resolved. Their decisions were written down, allowing them to be read by other judges. Over time, a rule of precedent was established whereby a judge had to follow the decision of an earlier judge if the facts of both cases were the same or very similar. Thus, a body of law was developed in the capital, which was applied throughout England. It was common to all parts of England, hence the name ‘common law‘. Judge-made common law operated as the primary source of law before Parliament acquired powers to create statute law.

However, although judges administered the king’s justice, the king remained the ultimate source of law to which appeals could be made. Parties frustrated by the judges’ decisions appealed to the king. He delegated the hearing of those appeals to his Chancellor, an important member of the royal council.

Successive Chancellors developed their own court –the Court of Chancery- along with its own legal system known as equity, a system based on conscience and fair dealing. Equity emerged as an alternative system to common law which had become inflexible. For example, the common law could only award damages, but the Court of Chancery could issue an injunction.

The two court systems –common law and equity- began to clash. In 1615, the king ruled that where common law and equity were in conflict, equity should prevail. The principle still applies today.

In the 19th century, it was decided to fuse the two court systems so that common law remedies and equitable remedies became available to the same party in the same court. The most common example of an equitable remedy is an injunction, a court order that a party must or must not do something.

However, it should be noted that equity never says that the common law is wrong, it merely provides alternative solutions to legal problems. Equity complements the common law but does not replace it. In the 16th century, a third kind of law emerged, statute law, that is, the laws or Acts passed by Parliament. Statute is the ultimate domestic source of law. No court can question the validity of an Act of Parliament. However, the common law remains the basis of the English legal system. It gives sense to Parliament’s laws. For example, the right of an employee not to be unfairly dismissed, that is, not to have his contract of employment terminated in certain circumstances, is a right granted by an Act of Parliament, but it is the common law that tells us what a contract is, how and when it is formed and how and when it is terminated.

Finally, a further and recent source of English law is European law

In conclusion, English lawyers regularly speak of four types or sources of law: common law, equity, statute law and European law

My long-lost cousin?

I’ve just stumbled across inglesparaprofesionales.

My fellow blogger is a translator in Spain who’s assembled a very useful collection of links for students. Why not have a look?

 

 

Run rabbit run!

‘My daddy was a bank robber, but he never hurt nobody. He just loved to live that way, and he loved to steal your money…’

A robber is a person who commits a robbery. In English law a ‘robbery‘ is a theft with the use or threat of violence against a person. Thus, while my daddy may not have hurt anyone, he at least threatened to hurt someone. If not, he wouldn’t have committed a robbery.

In Spanish law un robo is a theft with the use or threat of violence against a person, or the use of force against a thing. Thus, my papa may not have hurt anyone or even threatened to hurt anyone, yet he committed un robo by using dynamite to access the bank’s vaults.

So, while we can translate ‘robbery’ as robo, we can’t always translate robo as ‘robbery’, given that un robo may be a robbery, a  burglary, an aggravated burglary or a theft.

Riots, storms and such like

Few people can have failed to notice this summer’s riots in England, although many won’t know that a severe storm is heading to the UK as I write.

Storms (tormentas) and riots (disturbios o motines) are examples of events that impede or prevent the performance of contracts. In English law, they are cases of Force Majeure (Fuerza Mayor), unforeseen and unavoidable events for which wise lawyers make provision when draughting contracts.

One feature of the doctrine of Force Majeure that always amuses my Spanish students is our name for desastres naturales, ‘Acts of God’ in English law. Whether or not He actually has a hand in the weather, earthquakes, etc., may be debatable, but it is not a debate to be heard in the English courts.

Thus, Force Majeure includes riots (acts of man) and storms (acts of God).

Back online

After a hectic spring of teaching and a relaxing summer by the pool it’s time to start blogging again.

Free tort law exercises

There are some tort law exercises here.

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Hay unos ejercicios sobre los responsabilidades aquí.

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