If you're thinking "case law? I don't need to know about that! I'm not in the legal department" then I'm afraid you are mistaken. You still need to pay attention here. Legal issues in your business, or more specifically, avoiding legal disputes, is every bit the responsibility of HR as it is upper management or your lawyers.
Whilst this isn’t technically going to be a law lesson, it is important that you as HR professionals know what the legal system of England & Wales is, and how it will affect you in your company. This isn't just a case of swotting up on Acts of Parliament.
Whilst it is important to keep track of what regulations and relevant Acts of Parliament say, it is just as important to keep up with the case law in your field to avoid any unwelcome surprises.
Well, in order to answer this question, we do need to look to the wider context of the peculiar legal system of England & Wales (if you’re reading this in Scotland; apologies, your system is a little different).
The UK has a common law system (as opposed to a civil law system, which is what many countries in Europe have). This means that we get our (domestic) rules and laws from two places; statutory laws and common law. There is of course also EU law, but this is a relatively recent development. We’ll cover this later on.
First, there’s good old-fashioned statutory laws. These are Acts of Parliament that tell us what we’re not allowed to do. When Parliament passes an Act, they try to think of every possible scenario in which the Act may apply. This is clearly a very difficult task. Although Acts can be very detailed, it is almost impossible to dream up every situation where they will need to be used.
Acts of Parliament clearly have gaps, and it is therefore up the Judges to fill in those gaps. Taking the delightful example of assault, you’ll probably have heard of “assault occasioning actual bodily harm (ABH)” or “grievous bodily harm (GBH)”. These are offences created by Acts of Parliament, but the Acts give no explanation as to what “actual” or “grievous” actually means: it's up to the Judges to decide.
In this way, Judges are not only interpreting the law, but also subtly altering it. The law surrounding rape is a good example. Historically, it was accepted that rape was not possible between a husband and wife. Although clearly outrageous by modern standards, this was not changed until 1991.
Common law is the part of English law that is derived from custom and judicial precedent rather than statutes. Not only does case law clarify and modify some Acts of Parliament, it also creates entire offences.
Whenever a court modifies or creates a law in this way, courts lower down are obliged to apply the principles in future cases. So if the Supreme Court were one day to decide, for whatever reason, that “rape” between a husband and wife was no longer an offence, the Crown Court may be bound to follow that principle in the future - unless Parliament got involved.
A common law system is sometimes therefore known as precedent law, because new situations decided by the courts create a precedent which future courts must take into account.
Fun fact: Murder, you may be surprised to learn, is a common law offence. It isn’t written down in any Act of Parliament that murder is an offence. The offence was created by judges and shows how important case law is in the legal system of England and Wales.
All very interesting, you might think, but how does this relate to me and my business? Clearly, it’s important to keep up to date with how the law is evolving by keeping an eye on case law to make sure that you aren’t caught out by any new developments.
It’s up to HR departments to ensure that employees are being treated fairly.
Perhaps one of the most common situations that may arise in your company is the issue of discrimination. Now, we’re not suggesting that this is something that will be happening intentionally at your business, but as we’ll see, unintentional discrimination is often more common, and can end up having the same results.
This is where we need to talk about EU law. EU law will still matter in the UK come March for two reasons. Firstly, the transitional deal means that we’ll pretty much still be in the EU until 2020. Secondly, the UK will be transferring all EU law over into UK law - a.k.a. retained EU law - before repealing specific bits that it doesn’t like.
EU Laws on discrimination will still have to form part of your post-Brexit thinking.
There are two types of discrimination:
For ease, we’ll talk about sexual or gender discrimination. There are two ways in which companies may discriminate. First, on issues of pay; and second, on treatment.
Let’s start with pay. Direct discrimination is easy to identify. If you pay a woman less because she is a woman, that is direct discrimination. The principle, set out in EU law and adopted into UK law, is that you should pay everyone the same for the same work, or for work of equal value.
So far, so good, but what about indirect discrimination. This could arise if your company has a policy that appears to be unrelated to sex but may, in fact, result in one gender being paid less than the other.
For example, if you paid security guards £15 an hour and secretaries £10 an hour but had them on the same pay grade and thereby showing that you considered their work to be of equal value, this may be indirect discrimination based on sex.
If it can be shown that more men work as security guards and more women work as secretaries in your company, your policy may be indirectly discriminatory. Even though your policy isn’t directly discriminating against women, the end result would mean that your female employees earn less money compared to their male colleagues for the same work, or work of equal value.
Now let’s move on to treatment. Again, direct discrimination is easy to identify. If you give your female employees a shorter lunch break because they’re female, that’s direct discrimination.
As for indirect discrimination, it’s similar to the pay issue above. If you were to allow your (mostly male) security guards a ten-minute break every hour lunch break compared to a five-minute break for your (mostly female) secretaries, that would be indirect discrimination based on sex. As above, although you’re not directly treating women worse than men, the end result mean that this is the case.
The issue of direct and indirect discrimination of pay and treatment also crops up in relation to part-time workers. If you pay full-time workers more per hour than part-time workers, this may amount to indirect discrimination. Keep in mind as well, that in many jobs part-time workers are more likely to be of one sex than another, so you may end up with a case of discrimination based on sex as well.
There are of course, several legitimate justifications in paying or treating people differently. This is often referred to as positive discrimination.
Imagine that a fire department posts an advert looking for new firefighters. It states that applicants must be over 6’. This would be indirectly discriminatory, since men are more likely to meet this requirement than women. If the fire department can show that the nature of the job requires people to be over 6’ for the job to be carried out effectively, then this discriminatory measure may be acceptable.
To tie this back to case law, there are a few recent examples of how decisions in discrimination cases subtly alter what is legal, and what isn’t.
Let’s go back to the example given where part-time workers are paid less than full-time workers. This is what happened in the Jenkins v Kingsgatecase, which was heard by the European Court of Justice (ECJ). It was the ECJ who decided that this may be indirect discrimination if one sex makes up more part-time workers. Thanks to case law, we have a better understanding of what indirect discrimination is.
Now, you should have an understanding of what case law is and why keeping up to date with case law is so important not only for lawyers, but also for business leaders and HR professionals.
It’s not enough to just know what the statute says, you also need to know how case law is affecting your area. Failing to keep yourself informed could lead to some expensive civil actions that are best avoided!
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