Employment Law in Context

Citation

Sargeant, M. (2000), "Employment Law in Context", Employee Relations, Vol. 22 No. 6, pp. 612-619. https://doi.org/10.1108/er.2000.22.6.612.3

Consider this scenario: a group of HR managers in a medium‐sized town in the south of England assemble for their monthly meeting. They represent all the major industrial employers in the town, ranging from large manufacturing concerns to smaller servicing companies in the same sectors. They meet in an anonymous room at the local Trust House Forte hotel. There is no one to record the meeting and no minutes are taken. The meeting itself is very informal and is begun with a few opening remarks by the chair who introduces everyone present. The meeting then proceeds to listen to a representative from a “conservative” (right wing?) employers’ organisation who outlined what the Trotyskyists and other left‐wing trouble makers were up to at that time and for whom they had been working. The representative also described their “intelligence” about what disruption was planned by the extreme left in the near future. This presentation was followed by a general conversation between all the HR managers present. During this conversation they exchanged names of local “trouble makers” and trade union activists. They were especially concerned with those that might be on the move between employers and those who might be applying for employment with other companies represented in the room. Advice was given and received about what action employers should take.

These meetings were observed in the 1970s some time after the concept of unfair dismissal was introduced into statute by the Industrial Relations Act 1971. What these employers’ representatives were doing, quite consciously, was to compile and share a ’blacklist’ of individuals who would not be able to find employment with any of the major employers in this town. Those individuals would not know that they were on such a list, no matter how much they suspected it. Indeed there was in reality no such central list; only a sharing of names by a number of employers. The individuals had no right of appeal and they could be “blacklisted” on the word of one employer. The HR managers were not doing anything illegal and probably felt that they were working in the best interests of their employers. The keeping of such lists is now unlawful, of course. Section three of the Employment Relations Act 1999 makes the compiling of such lists an offence, although there must be some doubts about its effectiveness.

Perhaps more importantly, these HR managers represented one approach to employment law by employers. One might characterise it as the “avoidance approach”. The employers’ representatives were actually trying to avoid the consequences of statute that inhibited them from discriminating against and dismissing employees who were also trade union activists. They had decided that the law should be circumvented and that they should take whatever action they could, which was lawful, to avoid the consequences of employment protection statute.

Avoidance is perhaps one of a number of approaches that employers could take towards employment law. Other approaches are, first, to ignore it and deal with any problems that then arise by recourse to an employment lawyer and probably to the company cheque book. Alternatively an employer might take the view that employees are entitled, by statute, to certain employment rights and adapt their own policies to work within those parameters. This latter approach is, one suspects, the approach approved of by Brian Willey. Those who seek an understanding of employment law and its relationship with HR practice might do well by starting with this book.

The purpose of the book, as stated by the author, is to promote a threefold understanding of employment law. First, to appreciate the application of the law to HRM, second, to promote an awareness of the social purposes behind the legislation and, thirdly, to consider the contextual issues that affect implementation of the law. This latter aspect includes an understanding of social trends and economic conditions. Each chapter is structured in the same way and consists of a series of sections which consist of learning objectives, an introduction setting out the broad issues, the context of the legislation, the legal framework, its application to employment policies and practice, and, finally a number of case studies and scenarios for the reader to consider. The range of issues covered is large and clearly attempts to be inclusive, covering all subjects from the employment relationship to discrimination issues and collective rights at work.

This book is clearly written and is set out in a way that is likely to make it very accessible to the student using it. It has, perhaps, two weaknesses, one of which is common to all books dealing with employment law. This first one is that it is not up to date. There has been much new legislation in the employment law field since the 1997 general election. This has made the timing of the publication of any book dealing with the subject difficult. Each year brings new draft and final regulations which are difficult for any writer to include in a book which is due for publication. This book has serious problems in this regard. The author dates the preface as July 1999, but the publication year is 2000. This suggests that there has been a long delay between the writing of much of the text and the publication of the book. This might not be an issue for many books dealing with other areas of the law, but it is crucial for students of employment law. Even some 1999 Regulations are not included because, presumably, they came too late, e.g. the Management of Health and Safety at Work Regulations 1992 (SI 1992/2051) were replaced in 1999 (SI 1999/3242). Even though they existed in draft form for much of the year, the new Regulations are not referred to. Similarly the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) are not referred to, although the Parental Leave Directive (Directive 96/34/EC), which preceded it, is. This means that much of the law described in this chapter is out of date at the time of publication or shortly thereafter. Perhaps an indication of the legal aspects of this book being out of date is that there appears to be no use made of reported cases after 1998. This suggests a long gestation period between the writing and final publication. This weakness only affects some parts of the legal content of the book, but it is nevertheless important, especially for students who might have bought the book for terms of study beginning in the Autumn of 2000.

The second possible weakness may not be one at all. It is that in a book of this length it is not possible to describe the law in detail. It can be no more than an introduction, simply because it deals with so many other issues such as the contextual background to the law, its application to HRM, case studies etc. This perhaps raises the general question of how HRM, and other non‐law, students should be taught employment law. One suspects that many are put on employment law modules run by employment lawyers who are more concerned with producing specialist employment lawyers, rather than HRM people with a good understanding of the subject. It may be that the approach adopted by Brian Willey is exactly the approach that ought to be adopted in such teaching. This approach is the creation of an awareness of the social context, an appreciation of the relevant statute together with cases that have affected the interpretation of that statute and a consideration of its application to HRM practice. This seems to be preferable to trying to turn the student into an expert on the case law relating to an aspect of employment law. This approach alone makes a reading of this book a worthwhile exercise for those involved in the teaching of the subject. It is still questionable as to whether this book has achieved the right balance between examining the law and examining its context.

This book has many strengths, but it might be improved by the rapid production of a second edition and an extra 100 pages so that the sections dealing with employment law itself could be expanded.