Employment Law Dissertation Topics for 2019/2020

 

  1. Shared Parental Leave

Suggested Title

Despite its aim, shared parental leave has failed to incentivise male employees to take it because it makes no financial sense to do so. Does the law discriminate against male employees? What is the relevance of the court’s distinction between health and safety and childcare functions of parental leave? Is the court’s distinction fair?

Background

Male and female employees have shared parental leave following the birth of a child (The Shared Parental Leave Regulations 2014). This can be divided as they see fit.

However, male employees receive lower pay in their period of parental leave compared with female employees taking their statutory maternity leave. The rationale is that increased pay for the birth mother reflects the health-related effects of pregnancy and childbirth (Ali v Capita Customer Management Ltd [2019] EWCA Civ 900). The law distinguishes between health and safety and childcare functions of parental leave (Betriu Montull v Instituto Nacional de le Seguridad Social [2013] ICR 1323).

Only 0.8% of eligible people took shared parental leave last year (Shared parental leave is a flop because taking it makes no financial sense, Lauren Davidson, 2018).

 

  1. The Gig Economy

Suggested Title

Self-employment is no longer synonymous with being successfully established and living the dream. In fact, the gig economy offers neither the protections of employment, nor the benefits of self-employment. Employment law is to blame, but it is also the answer. Discuss.

Consider the key differences between the employed and the self-employed, including basic rights. Critically evaluate the extent to which recent case law solves the problems for workers in the gig economy.

Background

When one thinks of the gig economy giants like Uber and Deliveroo come to mind. Recently they have come under fire because their business model profits from “self-employed” workers who shoulder all the risks of self-employment. The model capitalises on how the law distinguishes working status as a means of determining employment rights, benefits and protections (s. 230, Employment Rights Act 1996; s. 83, Equality Act 2010).

Recently, the Court of Appeal found that a plumber was a “worker” for the purposes of the Employment Rights Act 1996, rather than a self-employed contractor. This gave him the right to sick pay (Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51). One view is that the court is inclined to construe the law purposively to protect gig economy workers. This approach was confirmed when the case reached the Supreme Court.

 

  1. Positive Action in Recruitment

Suggested Title

Employers are stuck between a rock and a hard place: An obligation to actively improve diversity and the threat of discrimination actions for doing so. Is the law sufficiently clear on positive action in recruitment process? If not, what improvements are required?

Background

Positive action is favouring a job candidate at the recruitment or promotion stage based on protected characteristics. It is permitted where the employer reasonably believes that people with those protected characteristics are disadvantaged and where relevant circumstances are satisfied (s. 158-159, Equality Act 2010).

There is a tough balance to strike. The idea is that people should be hired on merit alone and the protected characteristics of candidates only come into play in “tie-breaker” situations. Employers run a risk of discrimination claims from both directions – those with protected characteristics and those without (Furlong v Chief Constable of Cheshire [2019] 2 WLUK 725). Are any two candidates exactly comparable? Is the concept of a “tie-breaker” situation realistic?

 

  1. Religious Belief

Suggested Title

The Article 9 right to manifest one’s religion versus inappropriate promotion of religion in the workplace. Does the law draw the line in the right place?

Background

There is a difference between manifestation of a religious belief and the inappropriate promotion of that belief (Chondol v Liverpool City Council [2009] 2 WLUK 266). There are limits to proselytising in the workplace (Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818). Just how meaningful are these distinctions?

 

 5. Mandatory Retirement

Suggested Title

In May 2019, Professor John Pitcher brought an unsuccessful claim for unfair dismissal when Oxford University imposed a retirement age of 67. The university said its aim was to promote “inter-generational fairness and improvements in diversity.” Is mandatory retirement a thing of the past?

Consider the circumstances in which mandatory retirement is still permitted despite its purported abolition in 2011.

Background

Mandatory retirement was abolished in 2011. It used to be 65, but now an employer cannot force an employee to retire unless there is an objectively justifiable reason to have such a policy. Inter-generational fairness and diversity are frequently cited as reasons.

The case law on what constitutes an objectively justifiable reason has expanded since 2011. The European Court of Justice has also identified a distinction between the tests for justification of direct and indirect discrimination (Seldon v Clarkson Wright & Jakes [2012] UKSC 16).

 

  1. Women’s Pension Age

Suggested Title

Two women have taken the Department for Work and Pensions to court, claiming that raising their pension age “unlawfully discriminated against them on the grounds of age, sex, and age and sex combined.” What are their best grounds for arguing this? Critically evaluate the legal arguments on both sides.

Background

For women born in the 1950s, their pension age used to be 60 years old. It has now been raised to 65 in alignment with men’s pension age (Pensions Act 1995; Pensions Act 2011).

There are financial and equality-based arguments for raising the pension age, which may be enough to constitute legitimate aims. This is also a definitive policy decision by Parliament that the court may not want to interfere with.

On the other hand, age and sex are protected characteristics (Equality Act 2010). Even if the pension age increase serves a legitimate aim, does it go too far? What other options are there? Consider how pension age changes have been handled before.

 

  1. National Minimum Wage & Night Shifts

Suggested Title

Should Mencap have been decided differently? Critically evaluate the judgment.

Consider the relevant regulations and case law that produced the decision.

Background

Care workers needing to sleep at, or near, their workplace to assist if required, are available for work rather than actually working. In those periods when they are not actually working, they are not entitled to the national minimum wage. They may only receive the national minimum wage when they are required to be awake (Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641). This decision is currently being appealed.

The National Minimum Wage Regulations 2015 are a good starting place.

 

  1. Social Media in the Context of Employment

Suggested Title

How does the law reconcile an employees’ privacy rights with an employer’s investigation of gross misconduct on social media platforms? Has it struck the right balance?

Background

An employer must comply with The UK Data Protection Act 1998 first and foremost. This has three aspects: (1) acting in a “fair and lawful” way, (2) acting consistently with information given to employees about the monitoring, and (3) only monitoring what is relevant. More guidance is available in Employment Practices Code, Part 3.

A clear policy is very important (Lerwill v Aston Villa Football Club Ltd ET Case No.1304758/10) but communicating it to employees is vital too (Crisp v Apple Retail (UK) Ltd ET Case No.1500258/11).

The extent of any investigation should satisfy the ‘range of reasonable responses’ test (Whitham v Club 24 Ltd t/a Ventura ET Case No.1810462/10).

 

9. Whistleblowing

Suggested Title

To what extent are whistle-blowers protected under employment law?

Consider changes in the law over the last decade. Are there any promising or troubling patterns emerging?

Background

Since 25th June 2013, qualifying categories of disclosure (section 43B, Employment Rights Act 1996) are only protected if the whistle-blower reasonably believes that such disclosure is in the public interest. In addition, for the protections to apply there must be a causal connection between the whistleblowing and dismissal or detrimental treatment.

Even then, unless in exceptional circumstances, the first point of call is to go to the employer using any internal whistleblowing policies in place.

More recently, the EU has given high-level protection to whistle-blowers.

 

  1. Ownership of Employee Inventions

Suggested Title

David and Goliath: Employer rights to employee inventions have expanded too far. Discuss.

Background

At its most basic, anything invented by an employee in the course of (i) their “normal duties” or (ii) specific duties that could reasonably be expected to lead to invention, is the property of the employer (s. 39, Patents Act 1977). The central component is the meaning of “normal duties.”

Even innovation done outside of working hours, at home and on a personal computer can amount to an employee’s “normal duties” (Prosyscor Ltd v Netsweeper Inc and others [2019] EWHC 1302 (IPEC)).

Arguably it is extremely and increasingly difficult for employees employed in innovative fields, such as engineering, to ringfence their own inventions.