How to Structure a Law Essay (Practical Example)

How to Structure a Law Essay (Practical Example)

Here is an example of a first-class undergraduate law essay that will help you to learn how to structure your law essay.

The problems arising from the reliance upon the notion of “the employee” status.

The notion of “the employee” plays an important role in determining the conditions under which an individual works, and the rights to which they are entitled to. It is important to note that all individuals are entitled to certain employment protections, including the right not to have unlawful deductions taken from their wages, and the right to the UK minimum wage. However, one of the key rights that workers can only enjoy if they are judged to be an “employee” as opposed to a “worker” is the protection from unfair dismissal under Section 94 of the Employment Rights Act 1996. Under the ERA 1996, employees can only be dismissed if there is a valid reason, such as improper conduct and formal redundancy. In contrast, workers can be dismissed for any reason, and hence have much lower levels of employment protection, giving the employer more flexibility in dismissing them. In addition, under UK tort law, employers can be held vicariously liable for the torts of their employees, but not necessarily for their workers. Whilst this does not impact on employment protection, it does demonstrate another reason why employers may wish to avoid their workers being judged to be employees.

As a result of this, the distinction between employee and worker in the United Kingdom is often vital in determining the degree of legal employment protection afforded to individuals. However, even before the ERA 1996, this issue had been raised, most notably under the Master and Servants Acts in the 19th century, and in the case of Yewens v Noakes [1880] where a distinction was made between servants, who were subject to the command of their masters, and other workers who had greater control over their relationship with the people they work for. Whilst this distinction has largely been lost with the demise of the servant class, this judgement formed the basis of the modern distinction between workers and employees. In particular, Section 230 of the ERA 1996, which holds that a worker undertakes to do work under a contract for the provision of specific services, whilst an employee performs work under a contract of service, where they agree to provide a range of services to their employer.

Following the emergence of distinct employees, as opposed to servants, the question of what constitutes an employee became more important to answer. In Stevenson, Jordan and Harrison Ltd v McDonald and Evans Lord Denning considered the question of whether a chauffeur was a worker or an employee. This ruling held that a chauffeur could be considered to be an employee, as even though they only provided a specific service, they were paid a salary and only worked for one organisation. As such, employees were held to be individuals who were an integral part of an organisation, and thus this test became known as the ‘organisational test’. This case also more formally defined the contract for service, that indicates a worker, and the contract of service, which indicates an employee. Unfortunately, it fails to adequately address the question of what occurs when an individual is employed on a temporary or flexible basis, and has the ability to refuse to provide work if they are unable to.

This issue became prominent in the case of Ready-Mixed Concrete Ltd v Ministry of Pensions and National Insurance. Whilst this case did not relate to employment rights, it considered whether lorry drivers could be considered workers or employees, for the purposes of taxation. In this case, the drivers were ruled to be workers, in spite of being required to wear a company uniform; drive lorries with the company logo; drive exclusively for the company; and followed the company’s reasonable orders. They were held to be workers as they were able to delegate their driving duties to other drivers if they could not make a required delivery. This was held to indicate that they were not obliged to work subject to the control of the employer, and hence they were not under a contract of service. This created another test: the so called control test.

As can be seen from the above, there is significant confusion over the notion of “the employee” status, and how it can be clearly differentiated from “the worker” status, particularly when employers look to structure their operations to employ people as workers instead of employees. Indeed, such is the confusion that even when the status appears to be clearly indicated in the contract, it is not necessarily as clear in real life. For example, in Carmichael and Another v National Power Plc [1999], the employment contract stated that the individuals would be “employed by the C.E.G.B. at Blyth ‘A’ and ‘B’ power stations on a casual as required basis as a station guide”. However, in spite of the reference to the individuals being “employed”, the House of Lords stated that they were not employees, as they worked on a casual basis, and were not required to work if they chose not to. This led to another test: the so called “mutuality of obligation” test, which holds that mutual obligations are required in order for an individual to be classed as an employed. Unfortunately, this test has also been found to be wanting in some situations, including in Byrne Brothers v Baird [2002], where the Employment Appeal Tribunal accepted that mutuality of obligation is also needed in order for someone to be classed as a worker under Section 230 of the ERA 1996.

In response to these issues, additional tests have been introduced, including whether the financial risk associated with employment is borne by the employer or the worker. Under this argument, if the worker is bearing most of the financial risk, they are more likely to be judged to be a worker, whereas if the employer is bearing much of the risk then they are more likely to be an employee. Similarly, under the Employment Relations Act 1999, British employment rights have been extended to workers who work for British companies but are based outside the UK. This has raised the question of whether UK courts can have unlimited extraterritorial jurisdiction when enforcing these rights, and what happens if UK provisions clash with those in foreign nations. Finally, the issue has been further confused by the recent ruling in the Court of Appeals in Protectacoat Firthglow Limited v Szilagyi [2009] that a written agreement over the nature of service can be displaced, even if there was no intention to mislead.

Ultimately, the main problem arising from the reliance upon the notion of “the employee” status as a qualifying measure for the provision of the individual employment protections in UK law is that it is very difficult to clearly define an employee. Whilst the ERA 1996 and various legal cases have provided some guidance and legal tests, these alone are not sufficient to achieve absolute clarity. It has also been established that, even when a contract appears to make the status of an individual clear, this can be displaced by a court if it rules that the factual position is different from that in the contract. As such, reliance on the ill defined notion of “the employee” means that employers and workers will often be uncertain of the true nature of their relationship, thus making it more likely that the courts will have to rule on a large number of individual cases without setting valid or wide ranging legal precedents to be followed.

The extent British Labour law recognises a “right to strike”

When considering the extent to which British Labour law recognises a right to strike, it is important to note that whilst in 2007 the then Labour government publically declared that “industrial strike action is not a fundamental social right” during a European Court of Justice hearing on whether the Finnish Seaman's Union was allow to strike. This is in spite of the fact that the right to join a trade union is widely held as being a fundamental human right, alongside free speech and freedom of religion. According to Beckett (2001) the right to join a union is the only thing that can prevent employees being treated unfairly by their employers; and without the right to strike a union is not able to achieve this. This is largely because modern global economies, with free movement of labour and high levels of specialisation, leave individuals with little bargaining power, particularly when the employer has an effective monopoly over a given skill, such as driving a subway train in London, where Transport for London is the only employer.

In spite of this argument, the position of the previous UK government has dominated UK Labour law for the past hundred years, in that there is no formal right to strike in British common law. However, since the 1906 Trade Disputes Act, employees have been provided with immunity from financial liability to their employers, provided their strike is triggered by a proper ballot of employees, and meets certain criteria. Should a trade union organise industrial action without successfully fulfilling these criteria, they would be liable under common law for inducing their members to breach their contracts, and would thus be liable for any losses the employer sustained. Over the past century, these criteria have been progressively tightened, first by the Trade Unions and Labour Relations (Consolidation) Act 1992, and later by the Employment Relations Act 2004.

Under the TURLCA 1992, the trade union must meet various conditions, including holding a properly conducted ballot of all members, giving the employers advanced notice of the intention to ballot and the dates of any planned industrial action, and reporting these actions correctly to members. These requirements were slightly amended by the ERA 2004, including a provision that only those who would be induced to take part in an industrial action may vote on this action. Whilst these actions may seem stringent, and there is potential for unions to fail to carry them all out successfully in spite of their best intentions, Section 323B of TULRCA 1992 allows the union to disregard ‘small accidental failures to comply with provisions’ and still maintain its liability exemption.

In spite of this provision, there is a general argument amongst UK trade unions that the rules are too stringent, and discourage workers from striking for fear of reprisals due to relatively minor errors or even the action of striking. This has been seen in the case of the British Airways cabin crew who had some of their travel perks removed in response to their decision to strike in early 2010. As a result, UK trade unions have proposed a Trade Union Freedom Bill that would more properly recognise the right to conduct properly balloted strikes backed by a trade union. In particular, the proposed bill includes a greater level of protection from punitive actions, such as British Airways’ removal of travel perks, as well as a simplification of the rules and regulations around ballots, which often serve to give employers the opportunity to quash properly balloted industrial action. This proposal is opposed by the majority of politicians, who fear that simplifying the striking process would lead to a return to widespread strike actions over relatively minor issues, and the potential of unions holding employers to ransom for unreasonable pay demands.

However, it should be noted that even if the UK implements the proposed Bill, it would still be in breach of the trade union standards set by the International Labour Organisation, the ILO. This is important as the UK is a signatory of the ILO standards, and the ILO is one of the key international bodies, along with the European Union, the EU, which acts to protect the right to strike in Europe as a whole. Indeed, in the case of Demir and Baykara v. Turkey [2008], the European Court of Human Rights ruled that the right to form and join trade unions, which is recognised by the UK and included in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECPHRFF, includes the right to both collective bargaining and the right to industrial action. This case is significant, as the judgement was passed down on a case in Turkey, where civil service trade unionism was not permitted. As such, the court ruled that even though governments are free to develop their own legal systems, all of their systems must be compliant with the requirements of the ILO and the EU. This has been used by Ewing and Hendy to argue that if UK courts continue not to recognise the right to strike as laid out by the ECPHRFF, the UK could be found to be in breach of the convention, and be forced to alter its legal system.

In addition to the British Airways case discussed above, recent case law in the UK has added to the confusion over the extent to which a right to strike exists, and can be practiced. For example, in Metrobus Ltd v Unite [2009], an injunction was issued to prevent the strike on the grounds that the trade union failed to inform the employer of the result of the ballot as soon as possible. This ruling goes somewhat against the judgement in Demir and Baykara v. Turkey [2008], which holds that requirements such as this should not be used to prevent strikes when there is a clear majority in favour of the action. As such, this indicates that the UK may not be ready to fully follow ILO and EU requirements on the legitimacy of collective industrial action. However, in British Airways Plc v Unite [2010], an injunction that was initially granted against Unite due to the union’s failure to properly comply with the regulations was overturned at appeal, based on the ruling of the Court of Appeal that any compliance failures were minor and did not influence the overall outcome.

In conclusion, the arguments and cases discussed above can be seen to indicate that whilst employees in the UK do have a limited right to strike, this right is not currently in line with the requirements of the various international bodies to which the UK subscribes. In particular, the conditions under which a trade union can obtain the legal protection needed to call a strike are very stringent, and appear to be made more severe on a regular basis. There is some evidence in the recent ruling in British Airways Plc v Unite [2010] that judges are becoming more willing to overlook minor breaches in the regulations, and thus give wider recognition to the right to strike, in line with ILO and EU requirements. However, it remains to be seen whether future cases will support this development, or continue to insist on full compliance with procedures in order for strikes to be legally protected.

Freedom of Association

In the wake of reforms stimulated by the Wilson and Palmer cases before the European Court of Human Rights, can it now justifiably be claimed that British Labour law effectively ensures enjoyment by workers and trade unions of the right to freedom of association? This essay broadly argues that although Wilson and others v the UK exposed certain limitations in British employment law to4wards trade unions and trade union membership, more or less clearly suggesting the ways in which the law could be changed, little has in fact changed and collective actions are arguably still under-recognised by employers. At the same time, it has to be recognised that freedom of association is rather a broad term and as this essay endeavours to show, drawing on the initial stages of Wilson and Palmer and others, the term does not presuppose whether freedom of association relates only to the freedom to join trade union of once choice or whether it also relates to making use of some of the services provided by trade unions. Therefore, it is pointed out that giving a negative or positive response to the essay question largely depends on how freedom of association is understood.

Wilson and Palmer cases in the European Court of Human Rights (ECHR) brought to light the extent to which British domestic law was not entirely clear as to how employers should regard trade unions nor did it protect trade union and its members. This is evident in that Wilson and Palmer initially appealed to domestic courts and institutions, but to little effect. The cases were put forward after Wilson and Palmer were informed by their employers, Daily Mail and British Associated Ports respectively, that unless they terminated their membership in trade unions they would not receive an increase in their wages. Both individuals at first applied separately to the Industrial Tribunal arguing that their employers acted against the Employment Protection Act 1978. The Industrial Tribunal in both proceedings ruled in support of the applicants. The matter was complicated after the Employment Appeal Tribunal ruled in favour of the employers. In response, the employees applied to the Court of Appeal.

In Palmer and Others, the Court argued for Palmer claiming that the membership in trade union is cosubstantial with “making use of the essential services provided by the union”, thus it implicitly stated that collective bargaining was one of these services. In Wilson, which was very much a similar case, the Court sided with the employer arguing that Daily Mail’s derecognition of the National Union of Journalists (NUJ) was an action directed against the union rather than against individual employees. Thus, effectively, in the latter case the Court had recognised the employer’s right to curb the powers of collective bargaining. In the end, both cases called for the statement from the House of Lords, which almost without exceptions supported the employers, it was argued that in both cases the employers were not aiming to penalise or deter the union membership, and instead they merely sought to persuade the employees by offering a pay rise to abandon their trade union membership. All this confusion of tutelage, led in the end to the employees appeal in the ECHR, which ruled against the UK and in favour of the applicants. From this, it may be implied that British employment law was not comprehensive and open to a multitude of interpretations, as proved by the subsequent rulings of the different courts, and, as proved by the ruling of the ECHR, it had not granted trade unions and its members with adequate rights.

Ewing in his essay on the implications of Wilson and Palmer argues that the ECHR quite clearly set out the ways in which British labour law should change. He also argues that the case had ramifications also for the interpretation of Article 11 of the ECHR. The core of the problem of freedom of association, as argued by Ewing, is that it is a quite open-ended term. This meant that Lord Bridge of Harwich argument in the House of Lords that protection for trade union membership was not the same as using the essential services of the union was largely substantiated rather than fictive.

Article 11 of ECHR protects the right to peaceful assembly in order to protect one’s interests. However, it does not define by what means the interests should be protected. What is significant, and this is the direct implication of Wilson and Palmer for the international legislation, that more attention was paid to define those means. The ECHR ruled against the state arguing that the UK did not ensure that trade unions have the right to represent their members in front of the employers, instead the state permitted the employers to curb the power of the unions by using financial privileges to those employees

who surrendered their trade union membership. The Wilson and Palmer case exposed the need to regulate by domestic laws what are the effective rights that result from freedom of association. It also exposed the need to differentiate between the right of the worker and the right of the union, notably the Employment Act 1978 overlooks the distinction and ignores the fact that the refusal of the right to be represented by a trade union is directed against the worker as well as against the union.

Quite another matter is how those theoretical implications were actually incorporated into domestic employment law. Especially that the initial government’s response to the ECHR decision was minimal and came quite late. Bogg’s main argument is that the Employment Relations Act 2004, the newest reformulation of the previous Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) that was criticised after Wilson and Palmer, does not incur a major change in labour relations, but nevertheless it makes certain important amendments to freedom of association paralleling it with collective bargaining rights. This essay argues in favour of Bogg’s contention.

The presently recognised ILO Convention defines freedom of association as the right by all workers to establish and join unions of one’s choosing as well as subject themselves to the rules of those organisation. It also states that workers should be protected against anti-union discrimination. Still it is more vague as to the practicalities and ways in which workers are to be represented by the unions. Instead of granting the broad right of being represented in particular ways, the Convention provides a conditional right of this kind, i.e. “the convention also states that measures appropriate to national conditions should be taken, where necessary, to encourage and promote collective bargaining machinery”. The fact that the effective scope of union rights to represent is not expressly stated means that some condescension to the employees by the employers is allowed by the state. As Bogg argues law defined in such way is “exclusive enough to encapsulate many of the employer abuses”.

In conclusion although the ruling of the ECHR with respect to Wilson and Palmer suggested ways in which domestic law should change. The resultant change is not entirely perfect, the practical definition of freedom of association, arguably, is still open-ended and its parallel right to represent using the means of bargaining is conditional upon vaguely defined context. This means that depending on whether freedom of association is understood in a narrow or broad sense, our response to the essay question is different - in case of the former it is positive and in case of the latter it is negative.