Published: Fri, 30 Nov 2018
Employment Rights Act 1996
To understand the Employment Rights Act 1996 it is necessary to consider the progression of employment law and the surrounding politics during the decade-and-a-half previous. The general election in 1979 brought in a new Conservative government with a political agenda built on free market economics and a figurehead, Margaret Thatcher, who would pursue this with particular zeal. The 1980s saw the Thatcher government heavily involved in labour law as part of its collision with Trade Unions; only a year after taking power, the Employment Act 1980. Ian Smith and Aaron Baker write how
Although it adopted, at the very beginning of that government, a “softly, softly” approach, avoiding a rerun of the Industrial Relations Act 1971, it started the remarkable transformation of employment law that marked the 1980s.
The 1980 Act repealed provisions from previous Acts affecting a range of areas, from the law on picketing to unfair dismissal. Further legislation relating to employment law and/or trade unions would be enacted over the following decade, including the Employment Act 1982, the Trade Union Act 1984, the Employment Act 1988, the Employment Act 1989, and the Employment Act 1990, before Margaret Thatcher would be removed from power by the Conservative party.
The period of development did not end there, however. After a further conservative success at the general election in 1992, the Trade Union Reform and Employment Rights Act 1993 followed. What was expected to be a relatively minor Act ‘turned out to be far more than that.’ The 1993 Act in fact made several changes relating to Trade Unions, including their elections and financial governance, membership, and industrial action. Furthermore, the Act addressed individual rights concerning maternity and redundancy, as well as implementing developments in EU law relating to unfair dismissal.
During the same period whilst the Trade Unions were under attack, employment rights saw juxtaposed improvement. For example, ‘controversy ha[d] surrounded the deductions made by petrol companies from the wages of forecourt attendants who had to make up the shortfall in the till as a result of motorists filling their cars… and then driving off.’ The Wages Act 1986 rendered such deductions as illegal, save for where they were permitted by statute, as well as changing the law regarding wage councils in low-pay industries, and abolishing certain classes of redundancy rebates. Furthermore, developments were made in discrimination law; however, it is argued that such developments were more as a result of European law than National.
The Employment Act 1990 took ‘several themes first developed in 1980 to their logical conclusions.’ By the time this legislation was enacted the Conservatives had successfully rendered illegal secondary and unofficial industrial action, to name but two examples, however, by this stage the law was scattered across a ‘quite remarkable series of statutes (and, often, their supporting regulations and orders)…’
The Employment Rights Act 1996 introduces itself as ‘an Act to consolidate enactments relating to employment rights.’ As such, one of the main aims behind the Act was to bring together into a single piece of legislation much of the existing law in relation to employment rights. In fact, the 1996 Act was one of a number in a series of consolidations which occurred between 1992 and 1996. In particular, the Employment Rights Act 1996 replaced the Wages Act 1986, along with the Employment Protection (Consolidation) Act 1978. Given its age and the legal changes which had occurred over the 18 year which followed it, the latter Act had been heavily amended since its enactment. Separate pieces of legislation were enacted to consolidate the law regarding Trade Unions, social security, and the law surrounding and governing employment tribunals.
This background to the Act accounts for the diversity of areas that it governs, spanning the chronology of employment, from the beginning of employment to various methods of termination. For example, the Act begins at Part I with employment particulars – those details and information which must be given when employment commences. Parts II to VIIIA govern various aspects related to work, from wages and payments to working time and time off, to protected disclosures and protections from suffering detriment. Parts IX to XII concern the end of employment, including termination, unfair dismissal, redundancy and insolvency.
The Act further gives effect to numerous provisions of EU law, as highlighted by Astra Emir. For example, Council Directive 91/533/EEC ‘requires employers to inform employees on the terms and conditions which apply to the employment relationship’ which is provided for in Part I of the Employment Rights Act 1996. Similarly, Council Directive 96/71/EC ‘has been implemented by various provisions in the Employment Rights Act.’ The Act, therefore, has a secondary aim in implementing various measures of EU law which, as directives, require enacting in national legislation.
Despite being predominantly an Act of consolidation, the significance of the Employment Rights Act 1996 cannot be understated. For example, Hazel Oliver writes ‘the key statutory right in employment law is the right to claim unfair dismissal under the Employment Rights Act 1996… and the key test is that of whether the employer’s conduct and decision was “reasonable” under section 98 of the Act.’ This particular provision replaces sections from a number of previous Acts, including the Employment Protection (Consolidation) Act 1978, Employment Act 1980 Trade Union and Labour Relations (Consolidation) Act 1992 and Trade Union Reform and Employment Rights Act 1993; its value in collecting and consolidating the law in such a widely litigated area ought therefore be obvious. Drawing from previous legislation, the test in section 98, which is central to the question of unfair dismissal, ‘has three separate elements to be established… before a dismissal for misconduct will be deemed to be reasonable or unreasonable.’ As explained, the precursors to this section were in fact spread across a number of pieces of legislation, which had in turn been amended on a number of occasions throughout the 1980s; the value of bringing a central test concerning one of the most significant employment protections within one statutory provision is clear.
The Employment Rights Act 1996
The Wages Act 1986
Council Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. Official Journal L288
Amir, A., Selwyn’s Law of Employment, (18th ed., Oxford University Press 2014)
Oliver, H., ‘Employment Law’ in David Hoffman (eds), The impact of the UK Human Rights Act on Private Law (Cambridge University Press 2011)
Rubin, G., “Legislative Comment The Wages Act 1986” (1987) Jan. Journal of Business Law 47
Sheffield, C., “The reasonable response test in unfair dismissal cases”, (2003) 8(1) Coventry Law Journal 67
Smith, I., & Baker, A., Smith & Wood’s Employment Law, (10th ed., Oxford University Press 2010)
 Ian Smith & Aaron Baker, Smith & Wood’s Employment Law, (10th ed., Oxford University Press 2010), 5
 Ibid., 7
 Smith & Baker, op. cit., 7
 Gerry Rubin, “Legislative Comment The Wages Act 1986” (1987) Jan. Journal of Business Law 47
 The Wages Act 1986, s. 1
 Gerry Rubin, op. cit.
 Smith & Baker, op. cit., 7
 The Employment Rights Act 1996
 Smith & Baker, op. cit.
 Astra Amir, Selwyn’s Law of Employment, (18th ed., Oxford University Press 2014), 25
 Council Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. Official Journal L288
 Astra Amir, op. cit.
 Hazel Oliver, ‘Employment Law’ in David Hoffman (eds), The impact of the UK Human Rights Act on Private Law (Cambridge University Press 2011), 348
 Clare Sheffield, “The reasonable response test in unfair dismissal cases”, (2003) 8(1) Coventry Law Journal 67, 71
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