1. Identify and explain the following:
a. The main sources of UK law.
b. The impact of EU law on UK law.
2. Employers have a duty to comply with the law. Explain the following:
a. The role and function of the Equality Act 2010.
b. The potential consequences should an employer breach the 2010 Act.
3. Employment contracts encompass both express and implied terms. Explain how these terms may be identified, and if they are breached, the legal consequences which flow from the breach.
Sources of UK law
1. Part A: there are two sources of law in United Kingdom that is primary source and secondary source. Primary source is the source which refers the law itself, which means it includes original and authorative statements of law. Primary source includes Case law decided by Courts of United Kingdom, legislation enacted by law, and European law. On the other hand, Secondary source defined as the commentaries of law, and it includes Legal Encyclopedias, Parliamentary and Non Parliamentary Documents, Law Journals, and Textbooks (ILEX, n.d.).
Both the sources are defined below in detail:
- Case law:decisions of the UK Court are stated in publications which are named as Law Reports, and this source of law is fundamental and primary in nature. In UK, successful development of the law depends on the production of reliable law reports which stated the facts, issues, decision and legal principle also on the basis of which judgment is made by the court of UK. This concept is also known as doctrine of judicial precedents, under which decision made by the Court is the binding source of law for future decisions. Judges are bound by the decision made by superior court, but not from the decision of inferior courts.
- Legislation: In UK, there is no single written constitution, as it is defined as partly written or wholly un-codified. Maximum parts of the constitution are written down in the laws passed by the Parliament. These laws are introduced in the form of legislation which is applied to the Whole of the UK, unless it is specifically stated.
Parliament is considered as supreme legal authority in the UK, and only parliament has power to enact any law it wishes. Legislation passed by parliament is the superior to all other sources of law, and this law cannot be challenged by Courts of UK. Draft legislations proposals are introduced for making any new law or make changes in any existing law. Hundreds of bills are presented before the parliament, but only few of them become the actual law. There are two types of legislation, first is Primary legislation is the legislation which includes acts of parliament or statutes framed by parliament, and this state the actual intention in particular area. Second is delegated legislation includes statutory instrument which are made by the people working under the parliament authority, and it states how the acts will work.
- European Law:UK is the member of European Union which means that law of EU proceeds over UK law.
- Legal Encyclopedias:Encyclopedias are those points which help the individual in researching any law, cases, and legislations such as Halsbury’s Laws of England and Wales (SOAS, 2012).
Part B: European Union is the organization which was formed by different European countries. This organization was combined for economic, political, military and other common factors which directly or indirectly affects the member states. EU law is the body which was formed through Court judgments, treaties, and law. EU law is very much respected in EU countries and in case any conflict arise then EU law precede over the national law of member states. Generally, EU law is divided into three categories that are primary law, secondary law and supplementary law (Landale, 2016).
In UK, English legal system regulates all the legal matters, and after UK becomes the member of the EU then community law is also applicable in this country. However, It must be noted that this applicability immensely effect the British legal system. As per the European Act of 1972, UK had new sources of Law from 1st January 1973. It must be noted that EU law has no competencies over the UK in economic and social areas, and primary source of EU law and rulings of European Court of justice also have reasonable effect on English law. Effect of EU law on English legal system is direct, which means it is directly applicable on English law. This can be understood through example; British constitution establishes that parliament is sovereign, which means that no other law in Britain precedes the law made by government. On the basis of this sovereignty, it is clear that parliament is the superior authority in UK, and only parliament has power to enact laws. It is not possible for Courts in UK to challenge the law made by parliament, and parliament can make whatever law it wants and Courts are bound to apply that law. Parliament power has no limits, and it can make law on any matter, and no parliament has power to bind the future parliament.
Impact of EU law on UK law
As stated above, UK is the member state of EU, and laws of EU precede over the national law of UK in any conflict between the member states (Taylor Wressing, 2016).
2.Part A: on 1st October 2010, new equality Act was came into force, and this Act combined the different legislation into single Act and this new act state the framework which not only protect the rights of individuals but also ensure equality of opportunity for all. The main aim of this Act is to simplify, strengthens, and harmonizes the current legislation for the purpose of providing new discrimination law which protects individual from unfair treatment and also made society which is more fair and equal. There are nine legislations which are merged for enacting this new Act, and those legislations are Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Age) Regulations 2006, Equality Act 2006, Part 2, and Equality Act (Sexual Orientation) Regulations 2007.
The main aim of this Act is to bring together the number of laws at one place for the purpose of making the process easier. This new Act sets out various personal characteristics which are protected by law and that behavior also which is unlawful in nature. Simplification of legislation helps the country in becoming fairer society which also improves public services and help business in performing well (EHRC, 2017).
This Act provides the protection to everyone in Britain, and the protected characteristics under this Act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, and sexual orientation.
Under this Act people are not allowed to discriminate, harass or victimize any other person just because they have protected characteristics. This Act also provide protection against discrimination if someone possessed protected characteristics or where they have relation with someone who have these protected characteristics. There are various forms of discrimination against which this Act provides the protection such as sex discrimination, disability discrimination, gender discrimination, Age discrimination, etc.
Under this Act following persons are responsible for implementing this Act, and these authorities are Government departments, Service providers, Employers, Education providers (Schools, FHE colleges and Universities), Providers of public functions, Associations and membership bodies, and Transport providers.
Generally, equality Act 2010 was already in place because of the previous anti-discrimination laws is replaced. As stated above total 9legislations are replaced for enacting this new law, and also 100 pieces of secondary legislation. Bringing it into one piece of legislation, it becomes easy to understand and apply the law. Therefore, this Act is considered as amalgamation and harmonization of existing law, that were introduced massive changes in the law such as this new Act introduce indirect discrimination for apply to disability and gender reassignment for the first time and also impose prohibition on direct discrimination because of the pregnancy and maternity, and this Act for the first time imposed gender reassignment in schools. The Act also introduces various new provisions such as prohibition on discrimination arising from disability (EHRC, 2017).
Role and function of the Equality Act 2010
Part B: The Equality Act 2010 is the law which is introduced for the purpose of banning unfair treatment with employees on the different grounds stated under the Act, and it also helps in achieving the equal opportunities at the workplace and also n society. It is necessary that mangers and employers get familiarized with this legislation for the purpose of ensuring the adequate compliance of the provisions of legislation. There have been number of changes in the law since the Equality Act introduced and it also provide clear legislation for the purpose of ensuring equality at workplace (Fit for work, n.d.).
It must be noted that employers who treat the person less favorably just because of their physical and mental health condition are discriminating against the employee on direct basis, and they are acting unlawfully. Information related to those conditions which are protected by law are stated under Equality Act 2010, and this legislation also protects the rights of people who care for disabled people, and this also means that employer cannot be rejected because of their carer responsibilities. It is the duty of employer to make reasonable adjustments under this Act for avoiding discrimination with employees, and in case employer fails to make reasonable adjustments then it is considered as unlawful discrimination and employee has right to take action against employer under this Act. Employee can take following actions:
- Talk with the employer about this matter in informal manner.
- Employee can raise grievances or make formal complaint to the employer.
- Employer can make disability discrimination in the employment tribunal.
In case employee does not want to raise any grievance then he can try to solve the things with employer before making the complaint in employment tribunal, and in case employee win the case then compensation paid by employer may be reduced but it is not advisable to make grievance before making the claim. However, it must be noted that employee can make claim in employment tribunal within the three months of the Act they are complaining about and therefore it is important to act quickly for acting within the time frame (Citizen Advice, 2017).
3. The right and duties of the employer and employee are stated under the contract of employment, and through which these rights and obligations are stated under the terms of the contract. These terms are divided in two categories that are express terms and implied terms. Express terms are those terms which are expressly and specifically stated either orally or in writing. Express terms generally include terms related to pay, hours and holidays. The law states that some particular express terms must be stated in writing and handed to the employee in the form of a written statement of particulars within the period of two months of starting work.
On the other hand, implied terms are those terms which are not expressly stated in the contract, and they are fairly obvious to both the parties to the contract of employment. Generally, Court also state implied term in the contract of employment if any term has been left out. Implied terms include statutory rights such as right to equal pay and duties and duty of care. An implied term is considered as duty of mutual trust and confidence, and these terms are implied in every contract of employment. It must be noted that these terms are considered as necessary terms in employment law for various reasons, and these terms are stated below:
- Contract of employment never show the complete picture of the contract between the parties to the contract.
- Implied terms help in filling the gaps exist between the contracts of employment.
- Unequal bargaining power between employer and employee increase the necessity of implied terms.
Potential consequences for breaching the Equality Act 2010
There are some terms which are so obvious in nature that court directly implied those terms in the employment contract for the purpose of reflecting the real intention of parties. In some cases custom and practices of employer are also used to state the implied terms of the employment contract, but it is not an automatic process (Gov.UK, 2017).
In case law Quinn v Calder Industrial Materials Limited  IRLR 126, payment related to enhanced redundancy is directly based on policy document which are in the knowledge of employees in informal manner. In this case, Employment Appeal tribunal stated that there was no contractual effect in negotiation of custom argument. Court further stated that if custom is widely practiced in that particular industry or trade, then Court imply that term in the contract of employment. There is one more case Sagar v Ridehalgh & Son Ltd  1 Ch 310, in which Court of Appeal upheld the custom related to reducing wages in the weaving industry in Lancashire, for poor workmanship.
However, it must be noted that conduct of the parties during the negotiation of the agreement is also considered by Court for the purpose of implying terms in the contract of employment. In case once contract is concluded then subsequently that conduct is not considered by Court.
Some implied terms have an overriding effect over the express terms of the contract. There are two types of terms with this effect are, and those terms are mutual obligation off trust and respect and secondly it is the duty of employer to take reasonable care of health and safety of employees. As per the section 2 of the Unfair Contract Act 1977, employer cannot state any term which exclude his duty to take reasonable care of health of employees. On the other hand, trust and respect is the mutual obligation which must be fulfilled by the employer and employee for the purpose of controlling management powers (Cave, 2014).
Breach of employment contract is occurred in number of ways and contract can be breached by any party such as both employers and employees can breach the contract and both parties has right to sue the other party, if they suffer loss because of the breach of contract. Through these ways contract can be breached such as by the conduct of the employer who breach the fundamental term of the employment contract which allowed the employee to claim constructive dismissal, conduct of the employee or any misconduct of the employee is of such nature that it results in breach of employment contract then employer can dismiss the employee for gross misconduct, and employer dismisses the employee without issuing any notice to the employee or employer breach any other term of the contract.
Contract can also be breached if employee resigns from the job without giving notice to employer or employer breaches any restrictive covenants which prevent the employee from soliciting business from his employer.
Breach of implied term gives right to employee to resign and claim for constructive dismissal. There are some limited circumstances in which employers use express terms for the purpose of breaching implied terms of the contract.
In case of breach of express terms, other party can sue the party who conduct breach and also has right to make claim in employment tribunal (LAG, n.d.).
SOAS, (2012). Sources of UK Law. Available at: https://www.soas.ac.uk/library/subjects/law/research/file70249.pdf. Accessed on 12th July 2017.
ILEX, The Legal System of the United Kingdom. Available at: https://www.cilex.org.uk/about_cilex/about-cilex-lawyers/what-cilex-lawyers-do/the-uk-legal-system. Accessed on 12th July 2017.
Taylor Wressing, (2016). How is EU law made and implemented. Available at: https://www.taylorwessing.com/download/article-brexit-uk-legal-system.html. Accessed on 12th July 2017.
Landale, J. (2016). UK and the EU: Sovereignty and laws. Available at: https://www.bbc.com/news/uk-politics-eu-referendum-36247456. Accessed on 12th July 2017.
EHRC, (2017). What is the Equality Act. Available at: https://www.equalityhumanrights.com/en/equality-act-2010/what-equality-act. Accessed on 12th July 2017.
EHRC, (2017). Equality Act FAQs. Available at: https://www.equalityhumanrights.com/en/equality-act/equality-act-faqs. Accessed on 12th July 2017.
Citizen Advice, (2017). What can you do if an employer refuses to make reasonable adjustments. Available at: https://www.citizensadvice.org.uk/work/discrimination-at-work/what-are-the-different-types-of-discrimination/what-can-you-do-if-an-employer-refuses-to-make-reasonable-adjustments/. Accessed on 12th July 2017.
Fit for work. The Equality Act 2010 – what employers need to know. Available at: https://fitforwork.org/blog/the-equality-act-2010-what-employers-need-to-know/. Accessed on 12th July 2017.
LAG. Terms and conditions of employment. Available at: https://www.lag.org.uk/media/40098/employment_law_sample_chapter.pdf. Accessed on 12th July 2017.
Cave, A. (2014). Implied terms in the employment contract. Available at: https://www.farrer.co.uk/how-we-help/employment-issues/WorkLife/WorkLife/Dates/2014/7/Implied-terms-in-the-employment-contract/. Accessed on 12th July 2017.
Gov.UK, (2017). Employment contracts. Available at: https://www.gov.uk/employment-contracts-and-conditions/contract-terms. Accessed on 12th July 2017.
ACAS. Employment contract terms. Available at: https://www.acas.org.uk/index.aspx?articleid=3969. Accessed on 12th July 2017.
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