Kara Sears
Employment law covers a wide range of topics, including workers' rights, hiring and firing practices, wages and benefits, hours worked, workplace safety, family and medical leave policies, workplace discrimination, and more. The relationship between employers and employees is governed by employment law, which primarily takes two forms: common law and statute. Common law, or judge-made laws based on precedent, involves cases brought against employers in front of judges who decide on the legality of the employer's decision. Statute, on the other hand, refers to written laws passed by the legislature that outline the rights and obligations of employers and employees. While statutory rights are guaranteed by law and set a minimum level of entitlement, contractual rights are outlined in the employment contract and can be implied through industry standards or common practices. Understanding the interplay between common law and statutory law in employment settings is crucial for protecting the rights of both employers and employees.
| Characteristics | Values |
|---|---|
| Definition | Common law is derived from custom and precedent; statutory law is a piece of legislation made by the UK Parliament. |
| Examples | Common law: Precedent set by the case of Autoclenz Ltd v Belcher; Statutory law: Employment Rights Act 1996, Fair Labor Standards Act. |
| Scope | Common law: Judges decide on the legality of an employer's decision; Statutory law: Outlines rights and obligations of employers and employees. |
| Basis | Common law: Judge-made laws; Statutory law: Legislated laws. |
| Enforcement | Common law: Decided by judges; Statutory law: Legislated and enforced by the UK Parliament. |
| Modification | Common law: Evolves with judicial decisions; Statutory law: Cannot be overruled, undone, or reduced by any other agreement. |
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What You'll Learn
Statutory rights
In the UK, the relationship between employers and employees is governed by two main types of employment law: common law and statutory law. Common law is derived from custom and judicial precedent, while statutory law refers to a piece of legislation passed by the UK Parliament and receiving "Royal Assent".
Some examples of statutory rights in the UK include the right to receive the National Minimum Wage, Statutory Sick Pay, and the right to a written statement of employment. The Employment Rights Act 1996 is central to governing the employment relationship and sets out these entitlements.
In the US, the Department of Labor (DOL) administers and enforces various statutes that govern the relationship between employers and employees. These include the Fair Labor Standards Act, which sets standards for wages and overtime pay, and the Occupational Safety and Health (OSH) Act, which regulates safety and health conditions in most private industries.
Other examples of statutory rights in the US include whistleblower protections, which are mandated by most labor and public safety laws, and the right to unpaid, job-protected leave under the Family and Medical Leave Act (FMLA) for eligible employees.
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Common law
The relationship between employers and employees is governed by UK employment law, which takes two primary forms: common law and statute. Common law, or case law, is derived from custom, judicial precedent, and decisions rather than statutes or written laws passed by legislative bodies. In the context of employment, common law principles have developed over centuries, providing a foundation for employment relationships. These principles are found in court decisions rather than in a single piece of legislation.
The roots of common law in employment can be traced back to medieval England, and it continues to shape the rights and obligations of employers and employees. Common law fills in the gaps left by statutes, addressing areas not explicitly covered by them. It offers flexibility, allowing courts to adapt to new situations and interpret laws based on context. For example, while statutory law mandates minimum notice periods for termination, common law can extend these periods based on the circumstances of each case, offering a more tailored approach.
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Contractual rights
In the UK, the relationship between employers and employees is governed by employment law, which mainly takes two forms: common law and statute. The law of contract is a particularly relevant common law because all employees in the UK work under a contract of employment (whether that contract is in writing or not). Common law is derived from custom and precedent, rather than from statute.
A contractual right is an entitlement set out in the terms of an employment contract and is legally binding upon agreement. In most cases, contractual rights will be set out in writing in the employment contract, though some can be implied, either by industry standards or by common practice in the company. For example, if a company has regularly allowed employees to finish half an hour early on a Friday, this may become an implied contractual right.
In certain cases, rights that are covered by contractual as well as by statutory rights will overlap. For example, some employees may have the benefit of a contractual holiday entitlement that is more generous than the statutory minimum period of holiday. While this is intended to be a simple guide, these can be legally complex issues.
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Collective bargaining agreements
In the United States, the majority of private-sector workers (around three-quarters) and two-thirds of public employees have the right to collective bargaining. This right was granted to US workers through various laws over time. The Railway Labor Act, for instance, granted collective bargaining rights to railroad workers in 1926, and now covers transportation workers in sectors like airlines. The National Labor Relations Act (NLRA), also known as the Wagner Act, clarified the bargaining rights of most other private-sector workers in 1935 and established collective bargaining as the "policy of the United States".
The NLRA is the primary legislation governing collective bargaining. It explicitly grants employees the right to collectively bargain and join trade unions. The NLRA establishes procedures for selecting a labour organisation to represent employees in collective bargaining, prohibiting employers from interfering with this selection. The act requires both parties to bargain in good faith about wages, hours, and other terms and conditions of employment until an agreement is reached or an impasse is declared. If negotiations reach an impasse, employers can impose terms and conditions as long as they were offered to the union before the impasse. Once a contract is agreed upon, neither party can deviate from its terms without the consent of the other party. The NLRA also sets regulations on the tactics each side can employ during negotiations, such as strikes, lock-outs, and picketing.
State laws also play a role in regulating collective bargaining, making collective agreements enforceable under state law. They may provide guidelines for employers and employees not covered by the NLRA, such as agricultural workers. In addition, the Supreme Court has upheld the enforceability of arbitration agreements under state and federal law in cases like NLRB v. Jones & Laughlin Steel Corp. and Epic Systems Corp. v. Lewis, where employees were barred from pursuing work-related claims collectively.
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Statutory protection of whistleblowing
In the UK, employment law takes two forms: common law and statute. Common law is derived from custom and judicial precedent, whereas a statute is a piece of legislation made by UK Parliament. Statutory rights are set out in law, whereas contractual rights are set out in an employment contract. Statutory rights are guaranteed by law and cannot be overruled or reduced in any way by a contract, waiver, or agreement.
Statutory protection for whistleblowing is a critical aspect of employment law. Whistleblowers are individuals who disclose or report unlawful, improper, or dangerous activities or situations within an organisation. Whistleblower protection laws aim to safeguard whistleblowers from retaliation, discrimination, intimidation, or adverse consequences as a result of their disclosure.
In the United States, the Department of Labor enforces whistleblower protection laws, recognising the important role whistleblowers play in preserving democracy and the rule of law. These laws prohibit employers from retaliating against employees who exercise their statutory rights or engage in protected activity. Protected activity includes identifying hazards, requesting inspections, or refusing to engage in unsafe acts. Remedies for retaliation may include job reinstatement and payment of back wages.
Additionally, the Whistleblower Protection Act (WPA) specifically protects federal employees and applicants from retaliation for making protected disclosures. The WPA also imposes penalties on supervisors who retaliate against whistleblowers. Federal contractors, subcontractors, grantees, and subgrantees are also protected from retaliation for making protected disclosures related to their work with the federal government.
In the European Union, the Whistleblower Protection Directive establishes minimum standards to protect individuals who report breaches of Union law. The directive aims to guarantee effective protection for whistleblowers, ensuring they have access to confidential reporting channels and safeguarding their freedom of expression.
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Frequently asked questions
Common law is derived from custom and precedent, whereas statutory law is a piece of legislation made by UK Parliament. Common law cases are brought against employers in front of judges who decide whether an employer's decision was legal or illegal. Statutory law outlines the rights of employers and employees that have been agreed upon by legislators.
Statutory laws include minimum wage laws, the Fair Labor Standards Act, and the Employment Rights Act 1996.
An example of a common law case is Mr Johnson's case against his employer for breach of contract and negligence under the common law. Mr Johnson's principal claim was an alleged breach of the implied term of mutual trust and confidence, which caused his mental breakdown and subsequent inability to work.
Employment rights can be protected by both common and statutory law. In the UK, all employees work under a contract of employment, which is a common law entitlement. However, statutory rights set the minimum level of entitlement or protection that employees should be granted by their employer, and these rights are guaranteed by law.
