What is the CIPD 5OS01 Unit?

5OS01 Specialist Employment Law sits within the optional specialist pathway of the CIPD Level 5 Associate Diploma in People Management. It is designed for HR practitioners who advise on employment matters, manage employee relations casework, or operate in environments where legal compliance is a core element of the people function. The unit is examined through an assignment rather than an examination - students are typically presented with a workplace scenario and must apply legal principles to the facts of that scenario, demonstrating both knowledge of the law and the judgement to apply it to realistic situations.

The unit has three learning outcomes. The first addresses the nature and sources of employment law - understanding where employment rights come from (statute, common law, EU-derived legislation, and case law) and how they interact. The second covers individual employment rights - the employment contract, statutory rights during employment, and the specific provisions governing family-friendly leave including maternity and shared parental leave. The third learning outcome addresses collective employment law and the impact of the UK's departure from the European Union on the employment law framework. At Level 5, assessors expect critical evaluation alongside legal accuracy - knowing what the law says is necessary but not sufficient; you must demonstrate why the law is constructed as it is and what obligations it places on HR practitioners in practice.

This worked example uses a scenario involving a manufacturing company with a unionised workforce, a HR team managing a family leave request alongside a redundancy consultation, and a recent corporate acquisition raising questions about TUPE and EU-derived employment protections.

AC 1.1 - Nature and Sources of Employment Law

Employment law in the UK is derived from four principal sources, each with a different mechanism for creating and changing the rules that govern employment relationships. Understanding these sources - and their relationship to each other - is foundational to every other question in the 5OS01 unit.

Statute is the primary source: Acts of Parliament and Statutory Instruments create employment rights directly and cannot be contracted out of where legislation says they cannot. The Employment Rights Act 1996, the Equality Act 2010, and the National Minimum Wage Act 1998 are statutory sources - they bind all employers regardless of what an employment contract says. Where a contract attempts to exclude a statutory right, the statutory right prevails. Common law governs the employment relationship through judicially developed principles - the implied duties of mutual trust and confidence, the duty of care, and the duty to obey lawful instructions are common law obligations that apply to every employment relationship without any statutory authority. Case law develops both common law and the interpretation of statute: Employment Tribunal and EAT decisions establish how legislation is applied to the facts of real cases, and these interpretations are binding on future cases through the doctrine of precedent. EU-derived law produced a significant body of employment rights through Directives that were given effect in UK law through statutory instruments - the Working Time Regulations, TUPE, and family leave provisions all originate in EU Directives. Post-Brexit, this legislation is retained as UK domestic law and remains in force unless amended or revoked by the UK Parliament.

The distinction between employed and self-employed status is a further foundational concept in AC 1.1. Statutory employment rights apply to employees and, in some cases, workers - but not to the genuinely self-employed. Employment status is determined by the substance of the working relationship rather than the label the parties use: courts and tribunals look at control, mutuality of obligation, and personal service as the key tests, and will look through sham contractual arrangements where the reality is inconsistent with the stated label.

AC 1.2 - Rights and Responsibilities of Employment Parties

The contract of employment creates mutual rights and obligations - not simply a set of employer instructions. Express terms are those agreed and documented between the parties: pay, hours, job title, notice period, and any specific conditions relevant to the role. Implied terms exist in every employment contract regardless of what the written contract says: the implied duty of mutual trust and confidence (the employer must not conduct itself in a manner likely to destroy or seriously damage the employment relationship without reasonable and proper cause - Malik v BCCI [1997]), the duty of fidelity, the employee's duty to obey lawful instructions, and the employer's duty of care. Incorporated terms - those imported from collective agreements, policies, or works rules that are expressly or impliedly incorporated - also form part of the contract.

The ACAS Code of Practice on Disciplinary and Grievance Procedures is not a statutory instrument - it does not create legally enforceable rights - but Employment Tribunals are required to take it into account when assessing the reasonableness of disciplinary and grievance procedures. An unreasonable failure to follow the Code can lead to an uplift of up to 25% on any compensation awarded. Good faith obligations run in both directions: employees have a duty not to compete with the employer, not to disclose confidential information, and to perform their duties with reasonable care and skill; employers have the obligation to provide work (in some roles where the provision of work is itself an element of the contract), to pay wages, and to treat employees with trust and confidence.

AC 2.1 - Individual Employment Rights at Work

Individual employment rights in the UK statutory framework protect employees from a range of adverse treatment by their employer. The right not to be unfairly dismissed requires two years' qualifying service (with specific automatically unfair reasons that apply from day one - pregnancy and maternity, whistleblowing, trade union membership, and assertion of a statutory right). Unfair dismissal is assessed by reference to whether the employer had a potentially fair reason for dismissal (capability, conduct, redundancy, statutory illegality, or some other substantial reason) and whether the decision to dismiss fell within the band of reasonable responses of a reasonable employer.

Flexible working rights entitle all employees with 26 weeks' service to request a change to their working arrangements - hours, times, or location. Since April 2024, the right to request flexible working applies from day one of employment and employees may make two requests per year. The employer must consider the request and respond within two months, and may refuse only on one or more of eight statutory business grounds. Discrimination law - specifically the Equality Act 2010 - provides protected characteristics including sex, pregnancy and maternity, age, disability, race, religion, and sexual orientation. The duty to make reasonable adjustments for disabled employees is a positive obligation: where a provision, criterion, or practice places a disabled person at a substantial disadvantage, the employer must take reasonable steps to remove that disadvantage.

AC 2.2 - The Major Ways in Which Maternity Leave and Shared Parental Leave Differ

Maternity leave and shared parental leave are both statutory entitlements for employees welcoming a new child, but they differ fundamentally in who is entitled, how pay is calculated, how leave is structured, and how each type of leave is activated. Understanding these differences precisely is essential for HR practitioners who manage family leave and advise managers on their legal obligations.

Entitlement and eligibility. Maternity leave is available to all female employees from their first day of employment - there is no qualifying period. Every pregnant employee who notifies her employer of her pregnancy and expected week of childbirth (by the end of the 15th week before her expected due date) is entitled to up to 52 weeks of maternity leave. Shared parental leave (SPL) has a dual eligibility requirement: the mother must qualify for maternity leave, and both the mother and her partner must independently meet a minimum earnings threshold (average weekly earnings of at least £123 over the relevant period). If either parent does not meet the threshold, SPL is not available to either. Partners who are self-employed or who do not meet the earnings test cannot access SPL, regardless of their employment status.

Activation and default position. Maternity leave begins automatically - by the date of birth at the latest - without any action from the employee beyond the required notification. SPL does not exist unless the mother actively curtails her maternity leave to create a shared parental leave pot. The pot equals the remaining weeks of maternity leave at the point of curtailment (up to 52 weeks) and remaining weeks of statutory pay (up to 39 weeks). Both parents must give their employer at least eight weeks' notice of each block of SPL they wish to take. The administrative burden of opting into SPL - compared to the automatic nature of maternity leave - is itself a structural barrier to uptake.

Pay structure. Statutory Maternity Pay (SMP) is paid at 90% of the employee's average weekly earnings for the first six weeks, followed by the statutory flat rate (£184.03 per week as at 2025, or 90% of AWE if lower) for up to 33 weeks. Statutory Shared Parental Pay (ShPP) is paid at the flat rate only - there is no enhanced first-period equivalent to the first six weeks of SMP. A mother who curtails her maternity leave at week two to create a maximum SPL pot loses the remaining four weeks of enhanced 90% SMP she would otherwise have received, and neither parent can recover that value through ShPP. This structural pay disparity is a significant deterrent to early curtailment.

Flexibility. Maternity leave must be taken as a single continuous block. An employee cannot return to work for a week, then take further maternity leave. SPL can be taken in separate, non-continuous blocks by agreement with the employer - for example, six weeks, then a period back at work, then a further eight weeks. Both parents can also take SPL simultaneously - a period of concurrent leave that is not possible under maternity leave provisions. This flexibility is the primary advantage of SPL over maternity leave for families who wish to share childcare from an early stage.

Enhanced pay and equal treatment. Where an employer offers enhanced maternity pay above the statutory rate, they are not automatically required to offer the same enhancement to the partner taking SPL. However, where an employer does offer enhanced SPL pay, male partners must receive the same enhancement as female partners - a failure to do so constitutes indirect sex discrimination. The EAT confirmed in Capita Hartshead Ltd v Ali [2019] that different treatment of SPL pay for men and women taking equivalent leave cannot be justified on the grounds that maternity leave serves a different purpose to SPL. HR practitioners advising on the design of enhanced pay policies must account for this equal treatment obligation.

Priority in redundancy situations. Employees on maternity leave have a priority right to be offered any suitable alternative vacancy in a redundancy situation, ahead of all other employees at risk. This right does not apply in the same way to employees on SPL - a distinction that HR practitioners must be aware of when managing workforce reduction exercises that affect employees on different types of family leave simultaneously.

AC 3.1 - Collective Employment Law and Trade Union Rights

Collective employment law governs the relationship between employers and trade unions and the regulation of collective action. Trade union recognition - the formal agreement by an employer to recognise a trade union for collective bargaining purposes - can be reached voluntarily or imposed through the statutory recognition procedure under the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Employment Relations Act 1999. Statutory recognition requires the union to demonstrate majority support among workers in an appropriate bargaining unit - typically determined by the Central Arbitration Committee (CAC).

Once recognised, the employer must bargain collectively on pay, hours, and holidays. The scope of collective bargaining is typically wider in practice - unions negotiate on redundancy procedures, disciplinary processes, and working conditions. Collective agreements are generally not legally enforceable between employer and union (they are binding in honour) but their terms are frequently incorporated into individual contracts of employment, at which point they become enforceable between employer and individual employee. Industrial action law in the UK is among the most restrictive in Europe. Trade unions and their members have immunity from tortious liability (inducing breach of contract) only where action is taken in contemplation or furtherance of a trade dispute, following a valid ballot with at least 50% turnout and majority support among those voting, and with the required notice given to the employer (at least 14 days). Unofficial industrial action - action taken without union authorisation or outside these conditions - carries no immunity.

AC 3.2 - EU Employment Law Post-Brexit

The UK's departure from the European Union has not eliminated EU-derived employment rights - it has changed their constitutional basis and the mechanism by which they can be amended. Understanding this distinction is essential for HR practitioners who advise on the stability of rights that employees rely on.

The European Union (Withdrawal) Act 2018 converted EU-derived domestic legislation into retained EU law at the point of exit, preserving the legal effect of Directives that had already been given domestic effect. The subsequent Retained EU Law (Revocation and Reform) Act 2023 gave the UK government the power to amend or revoke retained EU law without following the EU legislative process. The key employment laws that originated as EU Directives and remain in force as UK statute include: the Working Time Regulations 1998 (implementing the Working Time Directive - providing for the 48-hour working week, rest breaks, and 5.6 weeks' paid annual leave), TUPE 2006 (implementing the Acquired Rights Directive - protecting employees on business transfers), the Part-Time Workers Regulations 2000, and the Fixed-Term Employees Regulations 2002. These remain enforceable and employers remain bound by them.

ECJ case law decided before 31 December 2020 is retained as UK domestic case law and remains binding on lower courts - the Supreme Court and Court of Appeal may depart from it, but only where there are good reasons to do so, assessed using the same test as departing from their own previous decisions. ECJ judgments after 31 December 2020 are persuasive, not binding - UK courts may consider them, but are not obliged to follow them. In practice, this means that EU employment law developments - for example, ECJ rulings on the calculation of holiday pay in relation to commission payments - are no longer automatically incorporated into UK law and may diverge over time. HR practitioners must monitor both UK case law and CJEU developments to identify where the two frameworks are beginning to differ in ways that affect UK workforce management.