The Impact Of EU Law On UK Domestic Law Is Discussed In An Essay.

1.Outline the sources of law in the United Kingdom (UK) and explain the impact of European Union Law on UK domestic law.

2.The Equality Act 2010 covers all aspects of discrimination law, including discrimination at work. Identify and explain the following:

• Protected characteristics
• Direct and indirect discrimination
• What steps an employer needs to take to comply with the law.

3.The terms of an employment contract may be both express and implied.

Identify and explain the following:

• Express and implied terms
• Common law duties of an employer and whether these differ under a contract for service.

The sources of law in the United Kingdom are generally categorized under two regimes: primary and secondary sources. Primary sources are those that state what the law is. These are the authoritative and original statements of the law and make reference to the law. They are presented as Parliament-enacted legislation, Court-made case law and the law of the EU. Secondary law sources of the UK are those that contain commentaries and discussion of the law. Examples of these are textbooks, legal encyclopaedias, law journals, Parliamentary and non Parliamentary documents. The following section briefly discusses the above sources.

The United Kingdom legal system has a centralized court structure system that commonly applies to the entire nation (Anon., n.d.). It possesses a hierarchical structure and the high courts have greater authority than lower courts. It is Common Law-based, which means that judges develop the law through the years continuously passing decisions onto other judges. The law is developed through the doctrine of stare decisis, which means that the decisions of previous and higher courts form binding precedents on other and lower courts (Vong 2013, p.319). The cases are reported and published in the Law Reports, which are principal law sources in the UK. The above law reporting system dates back to the year 1865 (Library, n.d.).  The law reports consist of reprinted judgments, factual statements and the judges’ reasoning and determination (ratio decindendi and obiter dicta). There are various series of law reports including The Law Reports (comprising Chancery Division, Family, Appeal Cases and Queen’s Bench), All England Law Reports, Weekly Law Reports among others (Library, n.d.).

The United Kingdom does not possess a single, written and formal constitution (Bremner 2010, p.86). Huge portions of it are written but much of the UK Constitution comes in the form of Parliament-enacted legislation. As such, the UK adopts a parliamentary supremacy model and has a common law constitution (Dicey & Wade 1965, p.7). Accordingly, the Legislature in the UK is the supreme legal power and only it can enact laws as it wishes, which laws take precedence over the rest and cannot be challenged. They come in the form of primary and delegated legislation and can be found in print or on online databases.

The EU law forms part of the sources of law in the UK and this is specifically so by virtue of its membership in the European Union. There are various kinds of EU laws that apply in the UK. Among them include treaties, directives and regulations, binding decisions/acts of the EU, and the Court of Justice of the European Union (Patrick & Chambers 2016, p.11).

There is a wide and extensive range of law journals. Some are specifically focused while others are general, while others are weighty in legal arguments, and others are newsletters. Textbooks are law sources that are written by scholars and academicians for students. Both sources may be found in print or in online databases.

Parliamentary publications come in the form of command papers (White papers and Green papers) and provide important information regarding the background to pieces of legislation. They also come in the form of Parliament, House of Lords and House of Commons Debates. Non-Parliamentary publications consist of governmental departments’ consultation papers and reports, which are available in the respective websites. Legal encyclopaedias narrate comprehensively, statements of English and Wales law. Arranged by subject alphabetically, it is compiled by leading lawyers deriving from every source. The Halsbury’s Laws of England and Wales is an example.    

Case Law

There is little discourse on the way in which the UK is bound by the European Union law and the extent of the same. However, European law is generally known to have great impact on the UK municipal law in terms of shaping policies and laws. This section briefly sets out the impact of EU law on the domestic law of the UK.

International law binds the UK, as a member of the EU to respect and oblige to treaties that underlie the European Union (Patrick & Chambers 2016, p.11). By virtue of the EU law General Principles and Treaties, EU law can directly be invoked in municipal courts and takes precedence over national law in any area that the EU has ‘competence’. The import of the preceding, practically, is that when specific countries agree to work together in achieving a common goal, this is an area that grants the European Union with competence to act. Therefore, the primacy of EU law in such areas is mandatory. According to s.1 of the European Communities Act 1972, European Union law has direct effect on municipal law. ‘Direct effect’, in practice, implies that any UK statute, whether primary or secondary, that is inconsistent with the law of the EU, ‘disapplies’. This means that the legislation remains in the statute books but is void to the extent of its inconsistency (Patrick & Chambers 2016, p.11).      

The European Union legal system presents domestic actors with a formidable tool of influencing municipal law and policy (Alter 2000, p.489). Private litigants can draw on European Union Law in challenging national policies in domestic courts. National judges can refer the preceding disputes to the European Court of Justice (ECJ). In turn, the ECJ directs national courts to interpret municipal laws in a manner that is consistent with European law. The ECJ can also instruct national courts to apply EU law instead of national ones.  

S.4 of the Equality Act 2010 of United Kingdom outlines protected characteristics: sexual orientation, sex, belief or religion, race, maternity and pregnancy, civil partnerships and marriage, gender reassignment, disability and age. This paper will seek to explain briefly each and every element of protected characteristics.

Age

This involves discrimination of an individual based on age. For instance, for an employment scenario, persons below a certain age could be barred from employment. This Act seeks to promote equality among all persons despite their age difference.

Gender reassignment involves a transsexual person who seeks to change his or her gender. The Equality Act seeks to protect anyone who seeks to change his or her gender. Medical examination is not a mandatory requirement for protection under the Act.

Under race, the Act proscribes discrimination on colour, nationality, ethnicity and origin.

The Act prohibits discrimination based on the gender of an individual. This especially applies to women who in most cases would be treated unfairly. However, this does not mean that men are excluded since the act also covers all sexes.

Such discrimination applies to either a married person or a civil partner. This therefore means that persons who are unmarried or who are not in civil unions are uncovered under the Act.

Legislation

The Act prohibits discrimination on mothers who are in their pregnancy stage or in their maternity leave to which they are entitled.

Belief

A denomination or a religion to which a person professes should not a basis for discrimination as provided by the Act. The belief should however be recognized and genuine.

The Act protects persons who are physically or mentally impaired, who generally would not carry out their day to day activities. Such people include the blind, those infected with HIV and suffering from deadly diseases among other physical disfigurements.

S.13 of the Equality Act provides defines DD as an unfair treatment of an individual based on the protected characteristic that he or she possesses. In other words, this form of discrimination directly relates to the protected characteristics envisaged in the Act. It should be noted however that not all unfair treatment would result to a direct discrimination. This is to mean that where for instance a person has been unfairly treated but such discrimination is not clearly provided for under the equality act, then such a person might not successfully file a suit for discrimination.

In Aylott v Stockton on Tees Borough Council (2010), the UK Court of Appeal of held that it is discriminatory to unfairly treat a person who returned from sickness. The said sick person was subjected to strict monitory upon his return and later he was dismissed.

This involves an unfair treatment to persons who generally share a protected characteristic. However this form of discrimination can be permitted where there is a justifiable reason given by usually the employer. Indirect discrimination is provided under s.19 (2) of the Equality Act. Under the Equality Act, this form of discrimination is prohibited against the following protected characteristics; gender reassignment, disability, civil partnership, marriage, race, religion and age.

In the recent case of Essop & Ors v Naseem v Secretary of State for Justice (2017), it was held that for a claim for indirect discrimination to succeed the claimant must prove to the court that he shares a protected characteristic with a particular group of people. The claimant must also prove to the court that the alleged protected characteristic is the cause of discrimination.

An employer has to take into consideration several factors in order to make his work place compliant to equality act and generally to ensure that there is equality in work place. To begin with, the employer must put in place reasonable adjustments which consider persons with disabilities. The employer generally should be aware and ready to handle situations that involve potential employees who are physically impaired.

As noted here above, an indirect discrimination can be justified only if the employer sufficiently proves the reason for such a form of discrimination. Therefore, the employer should seriously consider the reasons for factors in his place of work that would bring about discrimination. The employer must also ensure that men and women are treated equally. There should be no occasion where men are receiving higher salaries or other benefits as opposed to women or vice versa. Equality also extends to health related questions. The employer in seeking to know the health status of a person should do so only in relation to the performance of the task allocated. It is the employer’s duty to ensure that instances of bullying and harassment are done away with. The equality act prohibits bullying and harassment and the employer would be held liable if bullying and harassment is occasioned in the place of work.

European Law

An employment contract is an employee-employer agreement, which contains the terms and conditions binding the parties thereto and which acts as a guiding principle in their relationship for the period of the agreement (The Law Dictionary 2017). Such an agreement could be in writing and/or by word of mouth. This type of agreement contains express terms that are binding to both parties. However, an agreement cannot only rely on express terms to be binding. Certain terms, though not explicit in the contract, are assumed to exist by conduct or statutory provisions governing the agreement and these are the implied terms of an employment contract.

Express terms of a contract are terms written or by word of mouth that parties to the contract will be bound (Selwyn 2014, p.85). They include wages and salaries, hours of works, bonuses, holidays, nature of the duties and overtime among others. Generally, breach of these terms will be grounds for repudiation. However, courts scrutinize the facts and circumstances giving rise to the breach to ascertain if it goes to the root of contract. In Cole v Midland Display Ltd (1973), the case involved dismissal of a staff-basis employed manager who rejected working overtime without being paid. The court adjudged the dismissal as fair due to the requirement of reasonable overtime work by staff.

Implied terms on the other hand are those terms that are not specifically set out in the agreement but may be too obvious to be expressly incorporated (Selwyn 2014, p.87). These are implied by courts and tribunals guided by the facts and circumstances of each individual case as well as the conduct of parties. O’Grady v M Saper Ltd (1940) involved the lack of payment for an employee for the time he was off work on sick leave. On a previous occasion, he was away on sick leave and was not paid, never asked nor expected the wages. The court determined that the non-payment was an implied term. Court decisions have shown several implied terms binding the Employer like the duty of trust and confidentiality. Employers who were in breach of this duty were held to have been in breach of an implied term of contract. For instance, is denying an employee leave to deal with a domestic emergency. Other implied duties can be derived from customs and practices in the same industry or recognized national agreements (Austen-Baker 2011). Breach of such terms is grounds for repudiation.

Whether Common Law Duties of an Employer Differ under a Contract for Service

As seen in the preceding question, an employment contract is an agreement containing the terms that parties are to be bound. Such a contract contains the duties and rights of all parties. This section scrutinizes the common-law duties of an employer vis a vis a contract for service. The latter is a legally binding and formal agreement between a person and a business working independently. The former is an agreement between an employer and the person the business employs (services, 2017).

One of the common-law duties of an employer to an employee is the duty of care. This duty raises obligations upon the employer to ensure that he/she or it has taken all the reasonable precautions to ensure the safety, avoid exposure to unnecessary risk and ensure the safe system of work of the employer (McGarr Solicitors - Dublin Solicitors Ireland, 2017). Such precautions will include the giving of instructions, training and supervising employees. The duty also extends to the provision and maintenance of a safe environment with adequate facilities (Worksmart.org.uk, 2017).

Secondary Sources

The next common-law duty is the duty one of maintaining employer-employee mutual trust and confidence. As seen earlier, this duty is implied on the contract when the contract does not express it as binding on the employer. The duty is an obligation to treat an employee reasonably and with proper cause in the course of employment. It demands that the employer conducts his business an honest manner to so as to maintain the dignity of the employee not only in the business but also in the labor market (Selwyn 2014, p.89).

Under common-law an employer is contractually vicariously liable for the acts of the employee (Douglas 1929). This means that any action brought against the business as a result of the employee’s negligence which arose in the course of his or her employment with the business, such an action is not taken upon the negligent employee but upon the employer.

The common-law duties of an employer are distinguished from those under a contract for services (services, 2017). Since this is not an employment, the duty of care and vicarious liability for the actions of an employee are not available in a contract for services (Harper 1934). The parties thereto have separate duties and obligations different from an employment contract, as in their nature, they are business-business contracts.

References

Alter, KJ 2000 ‘The European Union’s Legal System and Domestic Policy: Spill Over or Backlash?’, International Organization, vol. 54, no. 3, pp.489-518.

Anon., n.d. Central Feature of the English Legal System. [Online]
Available at: https://www.pravst.unist.hr/dokumenti/dokpdf_engleski_za_pravnike_1_web.pdf
[Accessed 6 April 2017].

Austen-Baker, R 2011, Implied terms in English contract law (Edward Elgar Publishing).  

Aylott v Stockton on Tees Borough Council Court of Appeal, July 2010, [2010] EWCA Civ 910

Bremner, P 2010, ‘The Lisbon Treaty: A Constitutional Document, Not a Constitution-A British Perspective’, Aberdeen Student L. Rev., vol. 1, p.83.

Cole v Midland Display Ltd (1973) IRLR 62.

Dicey, AV & Wade, ECS 1965, Introduction to the Study of the Law of the Constitution 10^th edn, Macmillan, London.

Douglas, WO 1929, ‘Vicarious Liability and Administration of Risk I’, The Yale Law Journal, vol. 38, no. 5, pp.584-604.

Equality Act 2010 (UK), viewed on 6 April 2017 https://www.legislation.gov.uk/ukpga/2010/15/contents

Essop & Ors v UK Border Agency; Naseem v Secretary of State for Justice [2017] UKSC 27

European Communities Act 1972 (UK), viewed 6 April 2017,

Harper, FV 1934, ‘The Basis of the Immunity of an Employer of an Independent Contractor’, Ind. LJ, vol. 10, p.494.

https://www.legislation.gov.uk/ukpga/1972/68/contents

Library, G. T. L., n.d. Case Law. [Online]
Available at: https://guides.ll.georgetown.edu/c.php?g=365741&p=2471217
[Accessed 6 April 2017].

Patrick, A & Chambers, DS 2016 Mapping the Great Repeal.

McGarr Solicitors - Dublin Solicitors Ireland. (2017). Employers’ Duties - McGarr Solicitors - Dublin Solicitors Ireland. [online] Available at: https://www.mcgarrsolicitors.ie/2009/04/07/employers-duties/ [Accessed 6 Apr. 2017].

O’Grady v M Saper Ltd (1940) 3 All ER 527

Selwyn, NM and Emir, A 2014, Selwyn's law of employment (Oxford University Press, USA).

Services, I. (2017). IR35 Explained: ‘Contract of service’ and ‘contract for services’. [online] www.contractorcalculator.co.uk. Available at: https://www.contractorcalculator.co.uk/difference_contract_for_services_of_services_ir35.aspx [Accessed 6 Apr. 2017].

The Law Dictionary. (2017). What is CONTRACT OF EMPLOYMENT? definition of CONTRACT OF EMPLOYMENT (Black's Law Dictionary). [online] Available at: https://thelawdictionary.org/contract-of-employment/ [Accessed 6 Apr. 2017].

Vong, D 2013, Binding precedent and English judicial law-making.