In general the additional statutory rights are enforceable in Employment Tribunals, rather than in the ordinary courts such as the County Courts and the High Court. However Employment Tribunals have only limited jurisdiction to consider claims based on contract so in a minority of cases it may be necessary to bring two claims, one to a court and another to a tribunal.

When employment tribunals were originally created in the 1970s it was envisaged that they would be relatively informal, applying a body of law without too much technicality. But as statute after statute has been passed, employment law has become one of the most complicated and technical areas of law.

Part of the reason for the complexity is that some legislation is home-grown whilst much  recent legislation has been passed because of the requirements of EU law.  

For example the right not to be unfairly dismissed – i.e. the right of every employee with at least 12 months’ service not to be dismissed without a good reason and following a reasonable procedure – is home-grown, applying only to those who come within the English-law definition of “employee”, and compensation for unfair dismissal is subject to a cap. By contrast the right not to be discriminated against – on the grounds of sex, race, religion, disability, age, etc – though enacted by the UK Parliament, was enacted largely because EU Directives required it, and in consequence applies to those who come within the EU definition of “worker” which is wider than the English-law definition of employee and includes some (but not all) who are self-employed in English law. There is no cap on the compensation which can be awarded for discrimination and the award – unlike ordinary unfair dismissal – can and normally would include an award for injury to feelings.

Other EU-prompted legislation is based on the principle of  minimum standards. For example, all workers are entitled to a minimum of 28 days paid holiday per year (on the basis of working a 5 day week – less for part-time working). An employer is free to provide more than 28 days paid holiday, of course, as long as it does not do so on a discriminatory basis.

However in some areas there is no minimum standard and the only control is the prohibition on discrimination. The result is that, in those areas, the mean employer escapes liability as long as it is equally mean to all its employees, whereas a more generous employer who treats all employees better, but some better than others, may become liable. For example the employer who presents a retiring employee with a gift might be at risk of an age discrimination claim from a younger employee who leaves to go to another job and receives no gift, whereas the less generous employer who gives no gift to anyone in any circumstances runs no such risk.

Most non-discrimination statutes are concerned to prohibit unequal treatment on prohibited grounds  but some also provide for special treatment for disadvantaged groups. For example there is a duty on an employer to make reasonable adjustments to accommodate disabled employees. This is as you would expect, but the classification of failure to provide special treatment as “discrimination” means, in this case, that the legal meaning of “discrimination” is the exact opposite of the ordinary meaning of the word, adding to the complex, and, in some cases, counter-intuitive, nature of employment law.

The difference between the legal definition of a disability and an ordinary illness, is the expected duration. Where a condition has lasted or is expected to last for at least a year, it is a “disability”, whereas if it is expected to last only 11 months, it is not. The practical consequences of this legal difference can be dramatic. In the first case there is a duty to make reasonable adjustments (which can include, for example changing part of a job description, as well as providing special equipment, additional rest breaks etc.)  and a dismissal based on inability to do the job cannot be justified where the disabled employee could have done the job if reasonable adjustments had been made. In the second case the employer is, in principle, entitled to dismiss if the illness means that the employee is not carrying out the job to an acceptable standard, and is unable to improve when warned: there is not generally any duty to make the same kind of adjustments.  

Because of the counter-intuitive nature of much employment law, it is particularly important for employees who feel they have been badly treated to obtain specialist legal advice as to whether their particular circumstances come within the patchwork of rights which the law currently provides.

Equally employers contemplating major changes to work conditions, or dealing with underperformance or misconduct also need advice to ensure that he way they proceed minimises the risk of legal challenge.                

This page was lasted updated in August 2011. Disclaimer