Employment Rights in UK Law

Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair?

In my opinion, the overriding emphasis in the European Court's judgments is that the existing rights of employees are to be safeguarded if there is a transfer. That means no more and no less than that the employee can look to the transferee to perform those obligations which the employee could have enforced against the transferor.

An issue that arises in this case is the significance of mutuality of obligation in the employment contract. Every bilateral contract requires mutual obligations; they constitute the consideration from each party necessary to create the contract. Typically an employment contract will be for a fixed or indefinite duration, and one of the obligations will be to keep the relationship in place until it is lawfully severed, usually by termination on notice.

Of course, it is important that the Industrial Tribunal should be alert in this area of the law to look at the reality of any obligations. If there is a term that is inherently inconsistent with the existence of a contract of employment, what actually happened from time to time may not be decisive, given the existence of that term.

If the tribunal concludes that the contract is not a sham, it is likely to wish to consider next whether the contract, which may well have been labelled a contract of employment, actually gave rise to an employer/employee relationship. This is not the same question as that relating to whether there is a controlling shareholding. This is not the same question as that relating to whether there is a controlling shareholding.

At the outset the limited context in which the Article 9 point arises should be stressed. It is an unfair dismissal claim brought in an employment tribunal against a private sector employer under the Employment Rights Act 1996 (the 1996 Act). The dismissal arose out of a dispute with the employer about the employee's working hours. In view of the some of the sweeping submissions made to the tribunals below and to this court, it should be made clear what the case is not about.

In these appeals, however, the parallel between the statutory right to paid annual leave and a contractual right to holidays with pay is to my mind much clearer and closer. It is not less close because of the Working Time Directive's emphasis on health and safety at work. Similar thinking has for many years informed the approach of responsible employers in framing contractual terms of employment. Moreover in each case the remedy would be an order for payment of the liquidated sum due.