The Sources of UK Law: Legislation, Common Law, and EU Law

1.

A. Main sources of the UK law

The principal sources of the UK law are: legislation, common law and EU law. The first of the three are internal sources of law and the last is an external source.

Legislation is the statutory law or the law enacted by the British Parliament and it is the primary law of the UK as also the supreme law as per the doctrine of parliamentary supremacy. In the UK, the principal of parliamentary sovereignty applies to make the statutory law out of the scope of judicial review.

Common law is the oldest source of law in the English legal system. Initially, consisting of customs, common law came to be seen as a judge made law as the customs gained more crystallisation under the doctrine of stare decisis. The important judgments of the courts have led to the development of common law principles that have an impact on laws of contract, tort, company and commercial laws and even criminal law.

The European Community (EC) law is an external source of law has now become binding over the UK law due to the operation of the European Communities Act 1972 and the Human Rights Act 1998 (specifically for the European Convention of Human Rights). In the time since the UK became a member of the European Community, the importance of the EU law has increased and in part it is due to the British Parliament passing legislations to give effect to the EU law.

There are also some historical sources that pre date common law and statute, such as custom, Roman Law and authoritative texts. An example of the last is Blackstone’s commentaries.

B. Equality Act and its aims

The Equality Act 2010 is a very important legislation in the context of rights at work place and work conditions for all workers in the public as well as private employment sectors. The Act itself is an outcome of 14 years of lobbying by human rights organisations and equality specialists. The overriding aim of the legislation is to achieve “harmonisation, simplification and modernisation” of the equality law in the UK.

As mentioned above, one of the aims for the enactment of the Equality Act 2010 was to reform and harmonise the earlier pieces of legislation that were applicable in the area. The earlier laws included the Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, etc. In all there are nine pieces of legislation and four EU Directives that have been implemented through this single piece of legislation.

1. G Slapper and D Kelly, The English Legal System (Oxon: Routledge 2009) 5.
2. Steve Wilson, Helen Rutherford, Tony Storey, Natalie Wortley, English Legal System (Oxford University Press 2016) 28.
3. Bob Hepple, ‘The New Single Equality Act in Britain’, (2010) 5 The Equal Rights Review 11.
4. Ibid, 14.
5. The Equality Act 2010, Introductory text.

Other aims of the legislation include reducing socio-economic inequalities, gender equality; prohibition of victimization, equality of opportunity among other aims. The legislation attempst to achieve these aims by providing clear categories that may be used for discriminating against employees, with some of these having direct relation to socio-economic inequalities, such as race or sexual orientation, which are protected characteristics under the legislation. Section 149 provides a single and comprehensive public sector equality, which requires eliminating discrimination, advancing equality of opportunity and fostering good relations between people with protected characteristics and those without protected characteristics.

C. Impact of Equality Act on business operations

The Equality Act 2010 has many implications for business holders and how they conduct their business. There are a number of requirements that business holders will have to follow in their business environments. First and important, there are nine protected characteristics. These include: pregnancy and maternity; marriage and civil partnership; sexual orientation; sex; religion or belief; race; gender reassignment; disability; and age. These protected characteristics are to be ensured by the employers not only in their dealings with their employees, but also the interactions as between the employers. The protected characteristics were adopted under the Equality Act 2010 because the British Parliament did not want to leave the question of discrimination an open-ended one as it is under the European Convention of Human Rights. This allows a sense of certainty for employers as well as employees in the UK, by not leaving the question of what would constitute discrimination by keeping the characteristics that may be used for discrimination as fluid areas open to interpretation. With the use of the nine protected characteristics, the employers and the employees know just what would constitute discrimination at work place.

Discrimination itself is also categorised into seven kinds, which includes direct as well as indirect discrimination characteristics. Multiple discrimination is also prohibited and employees can show that they were discriminated against by using two or more relevant protected characteristics.

1. Bob Hepple, ‘The New Single Equality Act in Britain’, (2010) 5 The Equal Rights Review 11, 15.
2. Ibid.
3. Bob Hepple, Equality: The Legal Framework (London: Bloomsbury, 2014).
4. Bob Hepple, ‘The New Single Equality Act in Britain’, (2010) 5 The Equal Rights Review 11, 16.

2.

A. Contract for service

A contract for service is a contract between an independent contractor and anyone who buys the specialist services of such an independent contractor. Therefore, there is no employer and employee relationship that is created by the application of the contract. Usually, there is a one time work in contract for service, as compared to a continuous work, which is seen in the contract of service. The employer is not liable for tortious acts of the independent contractor.

The Equality Act 2010 is also applicable to the contract for service. The Health and Safety Act 1974 is also applicable in such relations. However, there are many protection oriented laws, such as, duty of care of the employer to the employee, which are not applicable in such contracts.

B. Contract of service

A contract of service is an agreement between the employer and the employee. The Employment Rights Act 1996, section 230 provides that the contract of employment is a contract of service or apprenticeship. In that sense, a contract of service is essentially a contract of employment. Where there is a contract of service as between two parties, a relationship of employer and employee is created. Due to this relationship, a number of rights and duties as between the employer and employee are established. The employer is required to protect the employee against discrimination at workplace and also consider the protected characteristics under the Equality Act 2010.

Under the Health and Safety Act 1974, the employer is under a statutory duty to ensure that the workers’ health and safety is not compromised with at the place of work. This is apart from the common law duty of care towards the employees. Moreover, there are protective mechanisms in place for the protection of the employment rights of the employee.

C. Difference between contract for service and contract of service

The principal difference between a contract for service and contract of service is in difference of the creation of employment relations. In the former, the relation is that of an independent contractor and the buyer of services. In the latter, there is a clear employment relationship between the parties to the contract. This has several implications in the applicability of employment law. A person’s rights and liabilities may be determined by his legal status as that of an employee or independent contractor. The Employment Rights Act 1996, section 230 defines a contract of employment as a contract of service. Where the relation between the parties is governed by a contract of service, the employer owes a duty of care as an employer and is also vicariously liable for the tortious acts of the employee. The contract is also regulated by the protective legislation.

1. Ibid.
2. David Farnham, Employee Relations in Context (London: CIPD Publishing 2000) 3.

The significant difference between the two contracts was explained by Lord Denning in Stevenson & Others v. MacDonald and Evans, where Lord Denning stated:

“Under a contract of service a man is employed as part of the business, and his work is done as the integral part of the business, whereas under a contract of services his work, although done for the business, is not integrated into it, but is only accessory to it.”

Courts are at times called upon to determine the relation between two parties. In such situations, the courts apply certain tests to understand whether the contract between the parties is a contract for services or contract of services. The principal test, is the ‘control test’. This is applied by asking a simple question: who has the ultimate power of telling the worker what to do? If the control is with the employer, then it is a contract of service. If, however, the independent contractor is not ultimately controlled by the employer, then it is a contract for services.

3.

Working time Directive (2003/88/EC) and its impact on conduct of business in the UK.

The conduct of business in the UK is not only regulated by the laws and policies of the UK, it is also impacted by a number of EU initiatives, including the Directives by the EU that are issued from time to time. The Directive (2003/88/EC) is one of such initiatives and this essay discusses the impact of the Directive on conduct of business. The essay focusses on the substantive provisions of the Directive in order to understand how the UK businesses are impacted by these provisions.

Directive (2003/88/EC) was issued by the European Parliament on 4 November 200. It is called as the Working Time Directive because it relates to aspects of working time. The principal aims of the Directives are to ensure the health and safety of workers that can be adversely affected by long working hours or inadequate periods of rest in between work activities.

1. Stevenson & Others v. MacDonald and Evans, [1952] 1 T.L.R. 101 (C.A.), [111].
2. Ibid.

The meaning of working time can be seen to include three elements, as per the definition in the Working Time Directive, Article 2 (1). These elements are: any period during which the worker is working; the period in which the worker is at the disposal of the employer; and the period where the worker is carrying on the activities and duties as per the national laws and practices.

The Working Time Directive was motivated by the Maastricht Treaty, Article 137, which provides that the EC must attempt to improve the working environment to protect workers' health and safety. One of the important elements here for improved working conditions is related to maximum periods of work and minimum periods of rest in between work periods. The basic objective of the Directive is to ensure that economic considerations should not override the considerations for health, safety and hygiene of the workers.

The implications of the Directive for the conduct of business in the UK is seen through the operations of a number of provisions that provide for working conditions and periods of rests for workers. Moreover, the Directive is applicable to all sectors of activity, therefore, both public and private activities are a part of the Directive’s scope.

The principal rights under the Directive are related to minimum rest periods. These minimum rest periods include, rest periods of minimum 11 consecutive hours in a 24-hour period. Where the work hours are more than 6 hours a day, workers are entitled to a break. All workers are entitled to a weekly rest period of 24 hours, apart from the daily 11 hour rest period specified in Article 3. Maximum weekly work time is 48 hours. Night work conditions and periods of rest activity are also specified in the Directive. These include: not working for more than 8 hours in an average 24-hour period; health assessment of workers and confidentiality. Article 12 is also very important here as it provides for health and safety protection at work place. Its pertinent to mention at this point that the UK Health and Safety Act 1974 also provides for the ensuring of the health and safety of workers at workplace. However, in light of the Working Time Directive, the UK government has passed the Working Time (Amendment) Regulations 2003, to give effect to the Directive. With respect to rest periods, any time spent resting on the premises of the employer does not contribute to actual rest periods as the employee must be able to remove himself from the immediate work environment in order to have a real access to a rest period.

1. Catherine Barnard, EC Employment Law (Oxford: Oxford University Press 2006) 587.
2. The Working Time Directive (2003/88/EC).
3. Ibid, Article 1 (2).
4. Ibid, Article 3.
5. Ibid, Article 4.
6. Ibid, Article 5.
7. Ibid, Article 6.

In context of emergency workers and health care providers, working time is inclusive of any time spent on emergency calls. In Simap, the European Court of Justice has used the Directive to interpret working time for doctors in primary care teams. In CIG v Sergas, the Court applied the directive to nurses in emergency services.

UK allows individuals to opt out of the 48-hour a week provision in Article 6 of the Directive. The Working Time Directive allows member states to make derogations. It is provided in Article 17(1):

“With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves.”

Therefore, the opt out to 48-hour a week restriction is permissible under the Directive. There are no derogations to Article 7, which is one of the substantive provisions of the Directive, ensuring that all workers get up to 4 weeks paid leave in a year. This is the annual leave provision and it is provided that “The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.” The importance of this provision for the UK workers cannot be overstated as this is a provision that the UK employers are mandated to ensure and there can be no alienation of this right even by the workers. The European Court of Justice has also provided that this is one of the most important rights in the Directive and the ‘community social law’.

1. Ibid, Article 9.
2. Catherine Barnard, EC Employment Law (Oxford: Oxford University Press 2006) 588.
3. Case 303-98 Simap [2000] ECR I- 7963.
4. Case C-241/99 CIG v Sergas [2001] ECR I- 5139.
5. Lisa Rodgers, Labour Law, Vulnerability and the Regulation of Precarious Work (Edward Elgar Publishing 2016) 181.
6. Catherine Barnard, EC Employment Law (Oxford: Oxford University Press 2006).
7. The Working Time Directive (2003/88/EC), Article 7(2).

The UK has established different agencies or authorized different agencies to enforce the Working Time Directive. These agencies are: the Health and Safety Executive, the local authority’s environmental health departments, the Civil Aviation Authority, the Vehicle Operator and Services Agency and the Office for Rail Regulation. Therefore, the Directive is implemented in the UK and the businesses are meant to abide by the same.

To conclude, the businesses in the UK are significantly impacted by the Working Time Directive because the maximum working hours in the day and week are regulated by the Directive. Also, the rest periods that are mentioned in the Directive, such as 11 hours of compulsory rest in 24 hours and one day (24 hours) in a week are to be mandatorily provided by the employers in the UK, both in the private as well as public spheres. One of the important provisions of the Directive is that all workers will have the right to go on a paid 4-week annual leave. Where in the UK, employees are allowed to opt out of the 48-hour work week restriction, there is no derogation allowed from the requirement of providing a 4 week paid annual leave to all workers in the UK. The workers cannot opt out of it and the employer cannot deny it to the workers.

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Bibliography

• Barnard C, EC Employment Law (Oxford: Oxford University Press 2006
• Farnham D, Employee Relations in Context (London: CIPD Publishing 2000)
• Hepple B, ‘The New Single Equality Act in Britain’, (2010) 5 The Equal Rights Review 11.
• Hepple B, Equality: The Legal Framework (London: Bloomsbury, 2014).
• Slapper G and Kelly D, The English Legal System (Oxon: Routledge 2009)
• Rodgers L, Labour Law, Vulnerability and the Regulation of Precarious Work (Edward Elgar Publishing 2016)
• Wilson S, Rutherford H, Storey T, Wortley N, English Legal System (Oxford University Press 2016)

1. Joined cases 131/04 and C-257/04 Robinson Steele [2006] ECR I-000.