United Kingdom labour law

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In the UK in 2012, of the total working population 29.6 million people were employed, there was 8.1% unemployment, and 73.4% without union membership. The average income was £25,498, and the average working week was 41.4 hours.[1]

United Kingdom labour law involves the legal relationship between workers, employers and trade unions.[2] People at work in the UK benefit from a minimum charter of employment rights,[3] which are found in various Acts, Regulations, common law and equity. This includes the right to a minimum wage of £6.50 for over 21-year-olds under the National Minimum Wage Act 1998.[4] The Working Time Regulations 1998 give the right to 28 paid holidays, breaks from work, and attempts to limit excessively long working hours. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension. The Equality Act 2010 requires that people are not unjustifiably subjected to detriment based on their gender, race, sexual-orientation, beliefs and age, while employers must positively accommodate the needs of disabled people to counteract social exclusion. Three Regulations also require that part-time staff, agency workers, and people on fixed-term contracts are treated generally equally compared to full-time or permanent staff.[5] The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. After qualifying periods, all employees are entitled to reasonable notice before dismissal, they can only be dismissed for a fair reason, and are entitled to a redundancy payment if their job was no longer economically necessary.[6] If an enterprise is bought or outsourced, the Transfer of Undertakings (Protection of Employment) Regulations 2006 require that employees' terms cannot be worsened without a good economic, technical or organisational reason. The purpose of these rights is to ensure people have dignified living standards, whether or not they have the relative bargaining power to get good terms and conditions in their contract.[7]

Beyond individual rights, workers have the right to participate in decisions about how their enterprise is managed through a growing set of statutory rights, and through collective bargaining. Gradually, the number of "John Lewis" participation rights to have a "voice at work" have grown, often mirroring European standards. Workers have the right to codetermine how their occupational pensions are managed under the Pensions Act 2004. In some enterprises, such as universities,[8] staff have a right to vote for the directors of the organisation. In enterprises with over 50 staff, workers must be informed and consulted about major economic developments or difficulties.[9] This happens through a steadily increasing number of work councils, which usually must be requested by staff. However, the UK has not yet implemented earlier proposals, or followed the majority practice in the EU, to require that all employees have a vote for their company's board of directors alongside shareholders.[10] Collective bargaining between trade unions and the enterprise's management remains the UK's primary model for participation at work. To counteract the employer's power to dismiss staff, and its control over the terms and pattern of work, collective agreements are ultimately backed up by a trade union's right to strike. Since the Trade Disputes Act 1906, a strike is basically lawful if it is "in contemplation or furtherance of a trade dispute". The Trade Union and Labour Relations (Consolidation) Act 1992 sets out rules for the constitution of trade unions, members' rights, the conditions to be fulfilled before strike action may be taken and the legal status of collective agreements.

History[edit]

Wat Tyler, leader of the Peasants' Revolt is killed in front of King Richard II.

"It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can combine much more easily; and the law, besides, authorises, or at least does not prohibit their combinations, while it prohibits those of the workmen. We have no acts of parliament against combining to lower the price of work; but many against combining to raise it. In all such disputes the masters can hold out much longer. A landlord, a farmer, a master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year without employment. In the long run the workman may be as necessary to his master as his master is to him; but the necessity is not so immediate."

A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book I, ch 8, §12

Labour law in its modern form is primarily a creation of the last three decades of the 20th century. However, as a system of regulating the employment relationship, labour law has existed since people worked. In feudal England, the first significant labour laws followed the Black Death. Given the shortage of workers and consequent price rises the Ordinance of Labourers 1349 and the Statute of Labourers 1351 attempted to suppress sources of wage inflation by banning workers organisation, creating offences for any able-bodied person that did not work, and fixing wages at pre-plague levels. Ultimately this led to the Peasants' Revolt of 1381, which was in turn suppressed and followed up with the Statute of Cambridge 1388, which banned workers from moving around the country. Yet conditions were improving as serfdom was breaking down. One sign was the beginning of the more enlightened Truck Acts, dating from 1464, that required that workers be paid in cash and not kind. In 1772 slavery was declared to be illegal in R v Knowles, ex parte Somersett,[11] and the subsequent Slave Trade Act 1807 and Slavery Abolition Act 1833 enforced prohibition throughout the British Empire.[12] The turn into the 19th century coincided with the start of the massive boom in production. Gradually people's relationship to their employers moved from one of status - formal subordination and deference - to contract whereby people were formally free to choose their work.[13] However, freedom of contract did not, as the economist Adam Smith observed, change a worker's factual dependency on employers.

Men leaving the pit, before the start of the Great War. The average life expectancy of a Liverpool mineworker was 30 years in 1900.

As its height, the businesses and corporations of Britain's industrial revolution organised half the world's production across a third of the globe's surface and a quarter of its population. Joint Stock Companies, building railways, canals and factories, manufacturing household goods, connecting telegraphs, distributing coal, formed the backbone of the laissez faire model of commerce. Industrialisation also meant greater urbanisation, and inevitably miserable conditions in the factories. The Factory Acts dating from 1803 required minimum standards on hours and conditions of working children. But people were also attempting to organise more formally. Initially, trade unions were suppressed, particularly following the French Revolution of 1789 under the Combination Act 1799. The Master and Servant Act 1823 and subsequent updates stipulated that all workmen were subject to criminal penalties for disobedience, and calling for strikes was punished as an "aggravated" breach of contract. But then the position was slowly liberalised and through the Trade Union Act 1871 and the Conspiracy, and Protection of Property Act 1875 trade unions were legitimised.[14] Toward the turn of the 20th century, in Mogul Steamship Co Ltd v McGregor, Gow & Co,[15] the House of Lords emphasised that businesses should be free to organise into trade associations in the same way that employees organised into unions. However, with growing unrest and industrial action the House of Lords changed its mind. At the turn of the 20th century he notorious judgment of Taff Vale Railway Co v Amalgamated Society of Railway Servants,[16] made unions liable in economic tort for the costs of industrial action. Although a combination of employers in a company could dismiss employees without notice, a combination of employees in a trade union were punished for withdrawing their labour. The case led trade unions to form a Labour Representation Committee, which then became the UK Labour Party, to lobby for the reversal of the law. After their landslide victory in the 1906 general election, the Liberals, among whom David Lloyd George and Winston Churchill were rising stars, embarked on significant welfare reforms. These included the Trade Disputes Act 1906, which laid down the essential principle of collective labour law that any strike "in contemplation or furtherance of a trade dispute" is immune from civil law sanctions. The Old Age Pensions Act 1908 provided pensions for retirees. The Trade Boards Act 1909 created industrial panels to fix minimum wages and the National Insurance Act 1911 levied a fee to insure people got benefits in the event of unemployment.

Amid mass demonstrations across Germany, the Versailles Treaty was signed in 1919. Part XIII established the International Labour Organisation, and recalled that "peace can be established only if it is based on social justice".[17]

During World War One the brutality of the Western Front demanded the participation of every available person and resource. As women took over traditional "men's jobs" the Suffragette movement gained momentum. Before the war's conclusion, the Representation of the People Act 1918 gave universal suffrage to men over age 21 and women over 28. A new beginning was promised by the victors to their people. The Versailles Treaty created the International Labour Organisation to draw up common standards between countries, for as it said, "peace can be established only if it is based on social justice", and echoed the US Clayton Act 1914 in pronouncing that "labour should not be regarded merely as a commodity or an article of commerce".[18] But the international system remained disjointed as the United States Congress withheld its approval to join the League of Nations. Within the UK the postwar settlement was to make a home fit for heroes. Whitley Councils extended the Trade Boards Act 1909 system to Joint Industrial Councils that encouraged (non legally binding) fair wage agreements,[19] while the Ministry of Labour actively organised and advised the growth of trade unions.[20] This was based on a theory of collective bargaining, agreement or action, advocated by Sidney Webb and Beatrice Webb in Industrial Democracy to remedy the inequality of bargaining power of workers.[21] Without legal force behind collective agreements, the law remained in a state of collective laissez faire, encouraging voluntarism for agreement and dispute settlement between industrial partners. The 1920s and 1930s were economically volatile. In 1926 a General Strike against coal miners' pay cuts paralysed the country, though was broken by Winston Churchill, by then the Chancellor of the Exchequer. The Labour Party had formed Parliamentary majorities in 1924 and 1929, but achieved little in the way of reform, particularly after the onset of the Great Depression.

By the Second World War and the Labour government of Clement Attlee, trade union membership was well established and collective agreements covered over 80 per cent of the workforce. With the British Empire in rapid dissolution, immigration from Commonwealth countries, and record levels of female workplace participation the character of Britain's workforce was changing fast. Though the common law was sometimes comparatively progressive,[22] sometimes not,[23] the first statutes to prohibit discrimination focused on gender and race emerged in the 1960s as the Civil Rights Act was passed in the United States. Discrimination in employment (as in consumer or public service access) was formally prohibited on grounds of race in 1965,[24] gender in 1975, disability in 1995, sexual orientation and religion in 2003 and age in 2006.[25] A complicated and inconsistent jamboree of Acts and statutory instruments was placed into a comprehensive code in the Equality Act 2010. Much discrimination law is now applicable throughout the European Union, to which the UK acceded in 1972. Although labour laws in the early European Treaties and case law were scant,[26] the Social Chapter of the Maastricht Treaty brought employment rights squarely into the EU's jurisprudence. Meanwhile, starting from the Contracts of Employment Act 1963, workers gained a growing list of minimum statutory rights, such as the right to reasonable notice before a fair dismissal and a redundancy payment.[27] Labour governments through the 1960s and 1970s were troubled by reform of the unwieldy trade union system. Despite producing reports such as In Place of Strife and the Report of the committee of inquiry on industrial democracy[28] which would have made unions accountable to their members created more direct workplace participation, reform did not take place.

The UK miners' strike (1984–1985) was a bitter confrontation between the Thatcher government and coal mine workers.

From 1979, a new Conservative government took a strongly sceptical policy to all forms of labour law and regulation. During the 1980s ten major Acts gradually reduced the autonomy of trade unions and the legality of industrial action.[29] Reforms to the internal structure of unions mandated that representatives be elected and a ballot is taken before a strike, that no worker could strike in sympathetic secondary action with workers with a different employer, and that employers could not run a closed shop system of requiring all workers to join the recognised union. The wage councils were dismantled. A public campaign against the merits of unions paralleled the decline of membership and collective agreement coverage to under 40 per cent. In addition, the government opted out of the EU Social Chapter in the Maastricht Treaty. In 1997 the new Labour government brought the UK into the EU's Social Chapter, which has served as the source for most reform in UK law since that time. Domestic led reform was minimal. The National Minimum Wage Act 1998 established a country-wide minimum wage, but did not attempt to reinvigorate the Wage Board system. The Employment Relations Act 1999 introduced a 60 page procedure requiring employers to compulsorily recognise and bargain with a union holding support among workers, though union membership remained at a level steadily declining below 30 per cent.

Employment rights and duties[edit]

All UK workers enjoy a minimal charter of employment rights,[30] but compared to the EU average have longer working hours, more unequal pay, less time off for child care, and are less likely to have an occupational pension.

UK labour law's primary concern, particularly under the Employment Rights Act 1996, is to ensure that every working person has a minimum charter of rights in their workplace.[31] Traditionally it draws a divide between self-employed people, who are free to contract for any terms they wish, and employees, whose employers are responsible for complying with labour laws. UK courts and statutes, however, use a number of different terms for different rights, including "worker", "employee", "jobholder", "apprentice" or someone with an "employment relation". A "worker", for example, is entitled to a minimum wage of £6.31 per hour,[32] 28 statutory minimum days of holiday, enrolment in a pension plan, not to mention the right to equal treatment and anti-discrimination that also apply to consumers and public services.[33] An "employee" has all those rights, and also a safe system of work, the right to a written contract of employment, time off for pregnancy or child care, reasonable notice before a fair dismissal and a redundancy payment, and the duty to contribute to the National Insurance fund and pay income tax.[34] The scope of the terms "worker", "employee", and others, are more or less left to the courts to construe according to the context of its use in a statute,[35] but someone is essentially entitled to more rights if they are in a weaker position and thus lack bargaining power. English courts view an employment contract as involving a relation of mutual trust and confidence,[36] which allows them to develop and enlarge the remedies available for workers and employers alike when one side acts out of bad faith.

Scope of protection[edit]

As yet, the UK has not consolidated a single statutory definition of the people to whom employment rights and duties apply. Statute and case law, both domestic and European, use 2 main definitions (employee and worker), and approximately 3 other minor types (jobholder, apprentice, and someone with an employment relation). The EU does have one consolidated definition of a ‘worker’, which is someone who has a contract for work in return for a wage, or an indirect quid pro quo (as in a communal cooperative), and also stands as the more vulnerable party to the contract.[37] This reflects the kernel of classical labour law theory, that an employment contract is one infused with “inequality of bargaining power”,[38] and stands as a justification for mandating additional terms to what might otherwise be agreed under a system of total freedom of contract.

Sidney and Beatrice Webb, in their book Industrial Democracy argued that because workers' inequality of bargaining power meant they could not contract for it themselves, law should create a "national minimum" of workplace rights, with trade unions to secure a living wage.

In the UK an ‘employee’ has all available rights (all the rights of a ‘worker’ but also child care, retirement and job security rights). The meaning is explicitly left to the common law under the main statute, the Employment Rights Act 1996 section 230, and has developed according to the classical 19th century contrast between a contract ‘of service’ and one ‘for services’. The government may also pass secondary legislation to include specific groups of people into the ‘employee’ category.[39] While the classical test was that an employee was subject to a sufficient degree of ‘control’,[40] new forms of work where people have greater autonomy in how to perform their jobs, meant that, particularly from the mid-20th century,[41] additional tests of employment were developed. Different expressions were used, including how much one could said to be ‘integrated’ into the business,[42] or whether one metaphorically wore the ‘badge’ of the organisation. The focus was said to be on ‘economic reality’, and form over substance. Multiple relevant factors would include how much the employee was ‘controlled’, if they owned their tools, if they had the chance of profit, or bore the risk of loss.[43] But in the late 1970s and 1980s, some courts began to speak of a new test of ‘mutuality of obligation’. One view of this was merely that workers exchanged work for a wage.[44] Another view stated that the employment relationship had to be one where there was an ongoing obligation to offer and accept work.[45] This led to cases where employers, typically of people on low wages and little legal understanding, pleaded that they had only hired a person on a casual basis and thus should not be entitled to the major job security rights. However, the leading case, Autoclenz Ltd v Belcher decided by a unanimous Supreme Court in 2011, brought the definition of an employment contract in line with that in used in the EU. Confirming that employment contracts are one of a specific type, and separate from commercial agreements,[46] Lord Clarke held that an exchange of work for a wage was essential. The private "true" intentions of the parties were not as important as the reality, because employment began in the context of an unequal bargaining relation. As he put it,[47]

This meant that a group of car valeters, although described in their contracts as being self-employed, with a right to substitute another person to do their work, and professed to have no obligation to undertake work, were entitled to a minimum wage and paid leave. The contract terms could be disregarded because they did not represent the reality of the situation.[48] In addition, a ‘worker’ is defined in ERA 1996 section 230 as someone with a contract of employment or who personally performs work and is not a client or a customer. This concept has greater scope, and protects more people, than does the term ‘employee’. This class of person is entitled to a safe system of work, a minimum wage and limits on working time, as well as discrimination and trade union rights, but not job security, child care and retirement rights. This concept thus reaches up to protect people who are quasi-self-employed professionals, albeit not so vulnerable relative to their quasi-employer, such as a home cleaner, or music teacher who visits student homes, or a taxi cab driver wearing a firm’s logo.

Contract of employment[edit]

Once a person's work contract is categorised, the courts have specific rules for determining, beyond the statutory minimum charter of rights, what are its terms and conditions. Analogous rules for incorporation of terms, and implication terms exist as in the ordinary law of contract. However, in Gisda Cyf v Barratt, Lord Kerr emphasised that if it affects statutory rights, the process of construction is one that must be “intellectually segregated” from the general law of contract, because of the relation of dependency an employee has.[49] In this case, Ms Barratt was told her employment was terminated in a letter that she opened 3 days after its arrival. When, 3 months and 2 days after arrival, she lodged an unfair dismissal claim, the employer argued it was time barred on the ground that in ordinary contract law one is bound by a notice when a reasonable person would have read a message. The Supreme Court held that Ms Barratt was in time for a claim because she was only bound by the notice when she actually read it. The applicable in employment was different, given the purpose of employment law to protect the employee. From formation to termination, employment contracts are to be construed in the context of statutory protection of dependent workers.

Every employee is entitled to a written statement of their employment contract,[50] which will usually incorporate the workplace collective agreement, and must follow, or be better than the minimum statutory rights.

The terms of employment are all those things promised to an employee when work begins, so long as they do not contravene statutory minimum rights. In addition, terms can be incorporated by reasonable notice, for instance by referring to a staff handbook in a written employment agreement,[51] or even in a document in a filing cabinet next to the staff handbook.[52] While without express wording they are presumed not binding between the union and employer,[53] a collective agreement may give rise to individual rights. The test applied by the courts is to ask loosely whether its terms are ‘apt’ for incorporation, and not statements of ‘policy’ or ‘aspiration’. Where the collective agreement’s words are clear, a "last in first out" rule was held to potentially qualify, but another clause purporting to censure compulsory redundancies was held to sound like it was binding ‘in honour’ only.[54]

In addition to statutory rights, expressly agreed terms and incorporated terms, the contractual hallmark of the employment relation is the series of standardised implied terms (or terms implied in law) that accompany it. First of all, and in addition to individualised implied terms that the courts construe to reflect the reasonable expectations of the parties,[55] the courts have long held that employees are owed additional and beneficial obligations, such as a safe system of work[56] and payment of wages even when the employer has no work to offer.[57] Reflecting more recent priorities, employers have also been recognised to have a duty to inform their employees of their workplace pension rights,[58] although they have stopped short of requiring employers to give advice on qualifying for workplace disability benefits.[59] The key implied term, however, is the duty of good faith, or “mutual trust and confidence”. This is a flexible concept that is applied in a broad variety of circumstances leading to remedies in damages or an injunction. Examples include requiring that employers do not act in an authoritarian manner,[60] do not call employees names behind their back,[61] do not treat workers unequally when upgrading pay,[62] do not run the company as a front for international crime,[63] or do not exercise discretion to award a bonus capriciously.[64] There has been disagreement among judges about the extent to which the core implied term of mutual trust and confidence can be 'contracted out of', with the House of Lords having held that the parties are "free" to do so, while others approach the question as a matter of construction of the agreement which is within exclusive judicial competence to define.[65]

The second, and older hallmark of the employment contract is that employees are bound to follow their employers’ instructions while at work, so long as that does not contravene statute or their agreed terms. Every employment relation leaves the employer with a residue of discretion, historically expressed as the ‘master-servant’ relationship. Today, in practice, this leaves the employer with the ability to vary the way work is done in accordance with business need.[66] The courts have allowed this to continue, so long as it does not contradict a contract’s express terms, which always require an employee’s consent,[67] or renegotiation of a collective agreement.[68] However, it has also been held that employers may insert ‘flexibility clauses’ allowing them to reserve the right to vary any contract term.[69] The limits of the courts’ tolerance of such practices are evident if they touch procedures for accessing justice,[70] or potentially if they would contravene the duty of mutual trust and confidence.

Health and safety[edit]

One of the principle terms that accompanies the employment relationship is that the employer will provide a "safe system of work".[71] As the industrial revolution developed, accidents from a hazardous working environment were a front line target for labour legislation, as a series of Factories Acts, from 1802, required minimum standards in workplace cleanliness, ventilation, fencing machinery, not to mention restrictions on child labour and limits to the working day. These Acts typically targeted particular kinds of workplaces, such as mines, or textile mills, before the more generalised approach took hold now seen in the Factories Act 1961. That applies to any workplace where an article is made or changed, or animals are kept and slaughtered.[72] The Employer's Liability (Defective Equipment) Act 1969 made employers automatically liable for equipment with defects supplied by third parties. Because isolated employees lack the technical skill, time, training to litigate, such regulation's primary line of enforcement was through inspectors or agencies before matters went to court. Today the Health and Safety at Work etc. Act 1974, enforced by the Health and Safety Executive, is the main law. The HSE can delegate enforcement to local authorities, whose inspectors have the power to investigate and require changes to workplace systems. In addition, HSWA 1974 section 2 foresees that employees will set up their own workplace committees, elected by the employees and with the power to codetermine health and safety matters with management. Spelling out the general duties found in HSWA 1974, are a set of health and safety regulations, which must also stay in line with the European-wide harmonised requirements of the Health and Safety Directive.[73]

19th century regulation limited child labour and working time in factories and mines, but employers were not always liable for accidents until 1937.

While the modern scheme of legislation and regulation engenders a comprehensive approach to enforcement and worker participation for health and safety matters, the common law remains relevant for getting civil law compensation, and some limits on an employers' duties. Although the legislative provisions are not automatic, breach of a statutory duty is evidence that a civil law duty has been breached. Injured employees can generally claim for loss of income, and relatives or dependents recover small sums to reflect distress.[74] In principle, employers are vicariously liable for all actions of people acting for them in the "course of employment" whenever their actions have a "close connection" to the job, and even if it breaks an employer's rules.[75] Only if an employee is on a "frolic of his own", and the employer cannot be said to have placed him in a position to cause harm, will the employer have a defence. Under the Employers’ Liability (Compulsory Insurance) Act 1969, employers must take out insurance for all injury costs, and insurance companies are precluded by law and practice from suing their employees to recover costs unless there is fraud.[76] However, until the mid-20th century there were a series of major limitations. First, until 1937, if an employee was injured by a co-worker, the doctrine of common employment, the employer could only be liable if it was shown they were personally liable by carelessness in selecting staff.[77] The House of Lords changed this in Wilsons & Clyde Coal Co Ltd v English,[78] holding an employer had a non-delegable duty of care for all employees. Lord Wright held there were "fundamental obligations of a contract of employment... for which employers are absolutely responsible". The second old restriction was that, until 1891, volenti non fit injuria meant workers were assumed to voluntarily accept the dangers of their work by agreeing to their contracts of employment.[79] Only if an employee callously ignores clear directions of the employer will he be taken to have voluntarily assumed the risk, like in ICI Ltd v Shatwell[80] where an experience quarry shotfirer said he "could not be bothered" to wait 10 minutes before setting of a detonation, and blew up his brother. Third, even if a worker was slightly at fault, until 1945 such contributory negligence precluded the whole of the claim. Now the court will only reduce damages by the amount the employee contributed to their own injury.[81] The fourth defence available to employers, which still exists, is ex turpi causa non oritur actio, that if the employee was engaged in any illegal activity they may not claim compensation for injuries. In Hewison v Meridian Shipping Services Pte Ltd[82] Mr Hewison concealed his epilepsy so that he could work offshore was technically guilty of illegally attempting to gain a pecuniary advantage by deception under the Theft Act 1968 section 16. After being struck in the head by a defective gangplank he suffered worse fits than before, but the Court of Appeal, by a majority, held his illegal act precluded any compensation.

The common law of tort also remains particularly relevant for the type of liability an employer has where there is scientific uncertainty about the cause of an injury. In asbestos disease cases, a worker may have been employed with at a number of jobs where he was exposed to asbestos, but his injury cannot with certainty be traced to any one. Although he may be able to sue all of them, a number may have already gone insolvent. In Fairchild v Glenhaven Funeral Services Ltd[83] the House of Lords held that if any employer had materially increased the risk of harm to the worker, they could would be jointly and severally liable and could be sued for the full sum, leaving it up to them to seek contribution from others and thus the risk of other businesses' insolvency. For a brief period, in Barker v Corus[84] the House of Lords then decided that employers would only be liable on a proportionate basis, thus throwing the risk of employers' insolvency back onto workers. Immediately Parliament passed the Compensation Act 2006 section 3 to reverse the decision on its facts. It has also been held in Chandler v Cape plc,[85] in 2011, that even though a subsidiary company is the direct employer of a worker, a parent company will owe a duty of care. Thus shareholders may not be able to hide behind the corporate veil to escape their obligations for the health and safety of the workforce.

Wage regulation[edit]

Since 1998, the United Kingdom has fixed a national minimum wage,[86] and sets outer limits on working time for virtually all workers. Direct wage and working time regulation is a comparatively recent phenomenon, as it was traditionally left to collective bargaining to achieve "a fair day's wage for a fair day's work". The Truck Acts were the earliest wage regulations whose provisions have survived,[87] requiring workment to be paid in money, and not kind. Now, the Employment Rights Act 1996 section 13 stipulates that employers can only dock employees’ wages (e.g. for missing stock) if the employee consented to deductions in writing. This, however, does not cover industrial action,[88] so following 18th century common law on part performance of work, employees who refused to 3 out of 37 hours a week in minor workplace disobedience, had their pay cut for the full 37.[89] From the Trade Boards Act 1909,[90] the UK had set minimum wages according to the specific needs of different sectors of work. But this system was eroded through the 1980s and eventually repealed in 1993.[91] One wages council that survived was the Agricultural Wages Board, established under the Agricultural Wages Act 1948, however it was abolished in England in October 2013, though boards still operate for Scotland and Northern Ireland.

Modern economic theory suggests an excessive minimum wage may raise unemployment as it fixes a price above demand for labour, although a reasonable minimum wage enhances growth because labour markets are persistently monopsonistic and when poorer workers have more to spend it stimulates effective aggregate demand for goods and services.[92]

To bring the UK back into compliance with basic standards in international law,[93] the National Minimum Wage Act 1998 was introduced. The minimum wage takes effect in every worker's contract. Workers do not need to show "mutuality of obligation" or any other requirement except that they personally perform work for a wage and is not a client.[94] One curious exclusion, however, is a pupil barrister who in Edmonds v Lawson[95] was held to not be "working" but be "conscientious in receiving instruction". The minimum wage rate is reset annually after guidance from the Low Pay Commission, and on 1 October 2014 it stood at £6.50 for over-21-year-olds, £5.13 for 18- to 20-year-olds, £3.79 for under-18-year-olds finished with compulsory education. Since 2010, the minimum was cut for "apprentice", which now stands at and £2.73.[96] The National Minimum Wage Regulations 1999[97] spell out the details of how the minimum wage should be calculated. Total pay received is divided by the hours actually worked over an average "pay reference period" of one month.[98] This definition has given rise to litigation in cases where a worker can stay at home but must answer phone calls, is allowed to rest or sleep during shifts, or must make themselves available "on call" over a long period. Generally speaking, it is irrelevant whether one is at home or not. If a worker is given sleeping facilities and is not awake, the minimum wage need not be paid.[99] And if a worker is "on call", then this time still counts at work if the worker is bound to stay within the vicinity of the workplace.[100] However, an exception in regulation 28 allows an employer to agree with a worker what the hours worked actually are, if they would ordinarily be unmeasured. In Walton v Independent Living Organisation Ltd[101] a worker who cared for a young epileptic lady had to be on call 24 hours a day, 3 days a week, but could do her own activities outside tasks such as going shopping, making meals and cleaning. Her company made an agreement with her that her tasks took 6 hours and 50 minutes a day, which resulted in her £31.40 allowance meeting the minimum wage. Certain deductions may be made including £4.51 per day for any accommodation the employer provides, though extra bills, such as for electricity, should not ordinarily be charged.[102] The minimum wage can be enforced individually through an ERA 1996 section 13 claim for a shortfall of wages in a Tribunal.[103] A worker may not be subjected to any detriment for enquiring, or requesting records or complaining about it.[104] However, because many workers will not be informed about how to do this, or have the resources, a primary enforcement mechanism is through inspections and compliance notices issued by Her Majesty's Revenue and Customs.[105] A remedy of up to 80 times the minimum wage is available to the worker and HMRC can enforce a penalty of twice the minimum wage per worker per day.[106]

Working time and child care[edit]

The Working Time Regulations 1998 set limits on working time, and implement the basic requirements of the Working Time Directive.[107] Paid holidays are the most concrete measure, following basic standards in international law.[108] Every worker is entitled to a minimum of 28 days, or four full weeks each year (though this includes public holidays).[109] There is no qualifying period for this, or any other working time right,[110] because the law seeks to ensure both a balance between work and life, and that people have enough rest and leisure to promote better physical and psychological health and safety.[111] Because the purpose is for workers to have the genuine freedom to rest, employers may not give a worker "rolled up holiday pay", for instance an additional 12.5% in a wage bill, in lieu of taking actual holidays. However, if the worker has not used his or her holidays before the job terminates, the employer must give an additional payment for the unused holiday entitlement.[112] Where a person works at night, he or she may only do 8 hours in any 24-hour period on average, or simply 8 hours at most if the work is classified as "hazardous".[113] Moreover every worker must receive at least 11 consecutive hours of rest in a 24-hour period, and in every day workers must have at least a 20 minute break in any 6 hour period.[114] The most controversial provisions in the working time laws concerns the right to a maximum working week. The labour movement has always bargained for a shorter working week as the economic productivity grew: the concept of a two day "weekend" arose in the earlier 20th century, while France more implemented the right to a 35-hour workweek in 2000. Under the Directive, this EU maximum is 48 hours. The maximum does not apply to anyone who is self-employed or who can set their own hours of work. In Pfeiffer v Deutsches Rotes Kreuz the ECJ emphasised that the rules aim to protect workers who possess less bargaining power and autonomy over the way they do their jobs.[115] Nevertheless, the UK government negotiated to let workers "opt out" of the 48 hour maximum by individually signing an opt out form.[116] Theoretically and legally, a worker may always change his or her mind after having opted out, and has a right to sue the employer for suffering any detriment if they so choose.[117] However, the obvious criticism has been made that the opt-out makes the right fictitious, because in jobs with a "long hours culture", people are socially compelled to do what everyone else does. If the worker has not "opted out", then the 48 hour week is not a rigid maximum, but is taken as an average over 17 weeks.[118] Analogous to the minimum wage rules, "on call" time (where people must make themselves available, but are not necessarily active) is regarded as working time if the workers are bound to remain awake and close to their workplace.[119] This created a significant problem for junior doctors, where in all European countries the culture has typically been that very long hours are expected. The European Court of Justice's decision in Landeshauptstadt Kiel v Jaegar[120] that junior doctors' on call time was working time led a number of countries to exercise the same "opt out" derogation as the UK, though limited to medical practice. The Health and Safety Executive is the UK body charged with enforcing the working time laws, though it has taken a "light touch" approach to enforcement.

UK employers are reimbursed by the government when employees take paid leave for child care.[121]

Possibly the most important time off during working life will be to care for newly born or adopted children.[122] However, unlike paid holidays or breaks that are available for "workers", child care rights are restricted to "employees". They are also less favourable for male parents, which affects gender equality.[123] Going beyond the minimum in the Pregnant Workers Directive,[124] the ERA 1996 section 71 to 73 and the Maternity and Parental Leave, etc Regulations 1999 guarantee maternity leave for 52 weeks in total, but in four steps, paid and unpaid. First, women must take two weeks compulsory leave at the time of child birth.[125] Second, and covering the compulsory leave, there is a right to 6 weeks' leave paid at 90 per cent of ordinary earnings. Third, there is a right to 33 weeks leave at the statutory rate, or 90 per cent of ordinary earnings if this is lower, which was £138.18 per week in 2014.[126] The government reimburses employers for the costs according to the employer's size and national insurance contributions.[127] Fourth, the mother may take additional, but unpaid maternity leave for another 13 weeks.[128] A contract of employment can always be, and if collectively bargained usually is, more generous. There is no qualifying period for the right to unpaid leave, but the mother must have worked for 26 weeks for the right to paid leave.[129] The mother must also tell the employer 15 weeks before the date of the expected birth, in writing if the employer requests it. Employees may not suffer any professional detriment or dismissal while they are absent, and should be able to return to the same job after 26 weeks, or another suitable job after 52 weeks.[130] If parents adopt, then the rights to leave follow maternity rules for one primary carer.[131] However, for fathers ordinarily, the position is less generous. The Paternity and Adoption Leave Regulations 2002 entitle a father to 2 weeks leave, at the statutory rate of pay.[132] Both parents may also take "parental leave".[133] This means that, until a child turns 5, or a disabled child turns 18, parents can take up to 13 weeks unpaid leave.[134] Unless there is another collective agreement in place, employees should give 21 days' notice, no more than 4 weeks in a year, at least 1 week at a time, and the employer can postpone the leave for 6 months if business would be unduly disrupted.[135] Otherwise, employees have a right to suffer no detriment, nor be dismissed, and have the right to their previous jobs back.[136] To redress the imbalance between women and men bearing children, the Additional Paternity Leave Regulations 2010[137] made it possible for the woman to transfer up to 26 weeks of her maternity leave entitlements to her partner. However, it remains the case that women care for children more than men, which operates as a comparative obstacle to career advancement, and perpetuates the gender pay gap.

Unlike the UK, Swedish parental leave is equally available to both parents, though men take around 24% of the leave.[138]

In further specific situations, there are a jumble of other rights to leave spread across the ERA 1996 sections 55 to 80I. "Emergency leave" is, under ERA 1996 section 57A, available for employees to deal with birth or a child's issues at school, as well as other emergencies such as dependents' illness or death, so long as the employee informs the employer as soon as reasonably practicable. In Qua v John Ford Morrison Solicitors[139] Cox J emphasised that there is no requirement to deliver daily updates. After EA 2002, employees gained the right to request flexible working patterns for the purpose of caring for a child under the age of 6, or a disabled child under age 18. The right to make the request is contained in ERA 1996 section 80F, and despite the fact that employers may decline the request, employers grant requests in 80 per cent of cases. An employee must make the request in writing, the employer must reply in writing, and can only decline the request on the basis of a correct fact assessment,[140] and within 8 grounds listed in section 80G, which generally concern business and organisational necessity. In Commotion Ltd v Rutty[141] a toy warehouse assistant was refused a reduction to part-time work because, according to the manager, everyone needed to work full-time to maintain "team spirit". The Employment Appeal Tribunal ruled that because "team spirit" was not one of the legitimate grounds for refusal, Mrs Rutty should get compensation, which is set at a maximum of 8 weeks' pay.[142] Finally, the ERA 1996 sections 63D-I give employees (and agency workers are expressly included) the right to request the right to get time off for training.[143]

Occupational pensions[edit]

Occupational pension schemes are one of the three pillars of pension provision in the UK, in addition to the state pension administered by the government based on National Insurance contributions, and private, or "personal pensions" which individuals may arrange for themselves.[144] After the Pensions Act 2008, and due to begin in October 2012, every "jobholder" (defined as a worker, age 16 to 75, with wages between £5,035 and £33,540[145]) has the right to be automatically enrolled by the employer in an occupational pension scheme, unless they choose to opt out.[146] It is a "defined contribution" scheme, meaning that whatever the jobholder pays in, they get out. Although collectively invested, benefits are individualised, meaning the risk of living longer and running out of money grows. In order to reduce the administrative complexity, a new non-departmental trust fund called the National Employment Savings Trust is established as a "public option" that is designed to be cheaper than existing asset managers in the private market.[147] Employers will be required to set aside their jobholders' wages at an agreed percentage, and negotiate how much they will give in contributions, if anything. Traditionally, before this "public option" became available, people usually had occupational pensions pursuant to a collective agreement between the employer and trade union. This left people with only the minimum state pension, when they had not organised a union for collective bargaining,[148] and still, the automatic pension will be far less generous than a collectively agreed scheme could be. Most collective pensions will require contributions from the employer, and traditionally they have been "defined benefit" schemes: this means that on retirement, people receive a defined benefit, based either on their final salary, or a career average of earnings, until death. This means that living longer does not become an individual risk, but is collectivised among all contributors. Employees, or jobholders, have paid for their pensions with their work: none of the benefits in a pension fund are gifts. This means, in principle, that the rules applicable to pension trusts differ from ordinary law of trusts,[149] and that pensions through contracts must meet the same expectations, to maintain mutual trust and confidence in the employment relationship.[150] As a matter of contract, the employer is under a duty to inform their staff about how to make the best of their pension rights.[151] Moreover, workers must be treated equally, on grounds of gender or otherwise, in their pension entitlements.[152] The management of a pension trust must be partly codetermined by the pension beneficiaries, so that a minimum of one third of a trustee board are elected or "member nominated trustees".[153] The Secretary of State has the power by regulation, as yet unused, to increase the minimum up to one half.[154] Trustees are charged with the duty to manage the fund in the best interests of the beneficiaries, in a way that reflects their preferences,[155] by investing the savings in company shares, bonds, real estate or other financial products.

Every jobholder will from 2012 be automatically enrolled in an occupational pension, and can codetermine how their retirement savings are invested and their voice in company shares is used.[156]

Because pension schemes save up significant amounts of money, which many people rely on in retirement, protection against an employer's insolvency, or dishonesty, or risks from the stock market were seen as necessary after the 1992 Robert Maxwell scandal.[157] Defined contribution funds must be administered separately, not subject to an employer's undue influence. The Insolvency Act 1986 also requires that outstanding pension contributions are a preferential over creditors, except those with fixed security.[158] However, defined benefit schemes are also meant to insure everyone has a stable income regardless of whether they live a shorter or longer period after retirement.[159] The Pensions Act 2004 sections 222 to 229 require that pension schemes have a minimum "statutory funding objective", with a statement of "funding principles", whose compliance is periodically evaluated by actuaries, and shortfalls are made up. The Pensions Regulator is the non-departmental body which is meant to oversee these standards, and compliance with trustee duties,[160] which cannot be excluded.[161] However, in The Pensions Regulator v Lehman Brothers[162] the Supreme Court concluded that if the Pensions Regulator issued a "Financial Support Direction" to pay up funding, and it was not paid when a company had gone insolvent, this ranked like any other unsecured debt in insolvency, and did not have priority over banks that hold floating charges. In addition, there exists a Pensions Ombudsman who may hear complaints and take informal action against employers who fall short of their statutory duties.[163] If all else fails, the Pension Protection Fund guarantees a sum is ensured, up to a statutory maximum.[164]

Income tax and insurance[edit]

  • Tax return (United Kingdom) include the P35 form filled out by employers for the employees' tax. In the PAYE series, a P60 form from employers proving tax was paid at the end of the year, P45 a form when employment ceases recording tax up to the end of employment. P11D is a form for employers to disclose expenses and benefits given to employees earning over £8500 that do not go through the payroll. Each person has an individual Tax code (PAYE). Similar abbreviations for forms are used for self-assessment and tax credits, e.g. S100 and TC600.

Civil liberties at work[edit]

  • The right with the greatest direct impact for labour law is the right to freedom of association under ECHR article 11.

Workplace participation[edit]

One of the earliest episodes of strike action, the Peasants' Revolt of 1381 was met with strict regulation of medieval workers' wages.

Although a wide set of employment rights create minimum standards of decency at work, the most important right to achieve conditions beyond those minima is participation in an enterprise's management. The UK has slowly codified its collective labour relations in law: there are legislative rights to information, consultation (on redundancies, business restructuring and management generally) and participation (so far, in pension management and health and safety committees) in workplace and company affairs. Trade unions, which are organised largely by contract, have the aim of improving their members' terms and conditions.[165] They must follow a democratic internal structure, and members cannot be excluded without good reason or discriminated against by their employers. Their main role is organising and representing a workforce through statutory participation channels, and collective bargaining. Since 1999, unions can follow a complex statutory procedure which will eventually mandate that employers recognise and bargain with them. Collective agreements typically set scales of pay and working hours, require better pensions, training and workplace facilities, with a system to update terms and conditions as the business environment changes. The ability to bargain rests on the final resort of collective action. As a counterweight to management's power to make workers redundant,[166] an official trade union is protected by law in its ability to call a strike. Collective action, including a strike, must always be "in contemplation or furtherance of a trade dispute".[167] Since the 1980s, there have also been strict requirements to ballot the workforce and warn the employer before, to not call sympathy strikes, and to take only passive action in picketing or protests, which have been called into question under international law.

Trade unions[edit]

Generally speaking, trade unions in the United Kingdom and their members have a broad freedom of association to organise their affairs in the way they choose. This reflects the standards set in the European Convention on Human Rights, article 11, and the ILO Right to Organise and Collective Bargaining Convention, 1949. Trade unions are organisations which have historically been based on freedom of contract, while the association's property held on trust for its members. However, since 1984 UK unions have been increasingly heavily regulated by statute to give members a series of rights beyond the common law: rights to vote for the union's executive, and to vote on use of political funds and strike action; rights to sue in court regarding a series of duties owed by the union's management, on finances and transparency; and rights to regarding membership of the organisation: to not be unjustly expelled, and to not be a member at all.

Reflecting the democratic tradition of British unions, in 2007, 2010 and 2013 Jerry Hicks challenged the general secretary of Unite the Union, and only lost by small margins in the system of voting by postal ballots among members.

(1) Voting and governance The principle that the common law enforced a union's own rules, and that unions were free to arrange their affairs is reflected in the ILO Freedom of Association Convention, and article 11 of the European Convention on Human Rights, subject to the requirement that regulations "necessary in a democratic society" may be imposed. Unions must have an executive body and that executive must, under TULRCA 1992 sections 46 to 56, be elected at least every five years, directly in a secret, equal postal vote of union members, and if irregularities are alleged, complaints can be taken up by the Trades Union Certification Officer.

The express terms of the union rule book can, like any contract, be supplemented with implied terms by the courts as strictly necessary to reflect the reasonable expectations of the parties,[168] for instance, by implying the Electoral Reform Society's guidance to say what happens in a tie break situation during an election when the union rules are silent.[169]

  • Political donations
  • Strike ballots

(2) Other members' rights If there are irregular occurrences in the affairs of the union, for instance if negligence or mismanagement is alleged and a majority could vote on the issue to forgive them, then members have no individual rights to contest executive decision making.[170] However, if a union's leadership acts ultra vires, beyond its powers set out in the union constitution, if the alleged wrongdoers are in control, if a special supra-majority procedure is flouted, or a member's personal right is broken, the members may bring a derivative claim in court to sue or restrain the executive members. So in Edwards v Halliwell[171] a decision of the executive committee of the National Union of Vehicle Builders to increase membership fees, which were set in the constitution and required a ⅔ majority vote, was able to be restrained by a claim from individual members because this touched both a personal right under the constitution and flouted a special procedure.

(3) Membership rights

Participation[edit]

Although direct participation rights in UK companies or organisations have a long history,[172] the ability for workers to elect directors or have a binding voice became rare after 1979. Historically, participation rights existed across a broad range of sectors including the gas industry, port authorities, iron and steel, and post, and the UK had the first "codetermination" laws in the world.[173] Today, a right of codetermination exists by law in universities,[174] and occasionally in private companies or government bodies by voluntary arrangement. By contrast in 16 out of 28 EU member states employees have participation rights in private companies, including the election of members of the boards of directors, and binding votes on decisions about individual employment rights, like dismissals, working time and social facilities or accommodation.[175] At board level, UK company law allows for any desired measure of employee participation, including alongside shareholders in the general meeting and on the board of directors. Although shareholders typically are the only ones with votes in the company's general meeting to elect the board of directors, the Companies Act 2006 section 168 defines only "members" as those with participation rights. Under section 112 a "member" is anybody who initially subscribes their name to the company memorandum, or is later entered on the members' register, and is not required to have contributed money as opposed to, for instance, work. Moreover under the European Company Statute, businesses that reincorporate as a Societas Europaea may opt to follow the Directive for employee involvement.[176] An SE may have a two-tiered board, as in German companies, where shareholders and employees elect a supervisory board that in turn appoints a management board responsible for day-to-day running of the company. Or an SE can have a one tiered board, as every UK company, and employees and shareholders may elect board members in the desired proportion.[177] An "SE" can have no fewer employee participation rights than what existed before, but for a UK company, there is likely to have been no participation in any case. In the 1977 Report of the committee of inquiry on industrial democracy[178] the Government proposed, in line with the new German Codetermination Act 1976, and mirroring an EU Draft Fifth Company Law Directive, that the board of directors should have an equal number of representatives elected by employees as there were for shareholders. But reform stalled, and was abandoned after the 1979 election.[179] Despite successful businesses like the John Lewis Partnership and Waitrose that are wholly managed and owned by the workforce, voluntary granting of participation is rare. Many businesses run employee share schemes, particularly for highly paid employees; however, such shares seldom compose more than a small percentage of capital in the company, and these investments entail heavy risks for workers, given the lack of diversification.[180]

There are, however, direct participation rights on one workplace issue, although not dismissals or working time. The Pensions Act 2004 sections 241-243 state employees must be able to elect a minimum of one third of the management of their occupational schemes, as "member nominated trustees". This gives employees the ability, in principle to have a voice on how their pension money is invested in company shares, and also how the voting power attached to company shares is used. There have, at the initiative of the European Union been a growing number of "work councils" and "information and consultation committees", but unless an employer voluntarily concedes to staff having a binding say, there is no legal right to participate in specific questions of workplace policy. Participation at work is limited to information, consultation, collective bargaining and industrial action.

Information and consultation[edit]

Formal, and individual information and consultation rights have been a recent development, mostly deriving from EU law. Domestically, the Companies Act 2006 requires in section 419 that companies issue an annual report, which must include details of how, under section 172, the business has fulfilled its duties to have regard to employees, people working down supply chains, the community, environment and long term performance. Such information can often be cursory, but may be useful for employees, and unions, in the use of their participation rights, or during collective bargaining. Consultation can sometimes encourage a change in employers' policy, even if employees' views are ultimately often ignored.

Under the Information and Consultation of Employees Regulations 2004,[181] companies with more than fifty employees must inform their workforce about major economic issues in their enterprise, and should consult about major changes, particularly redundancies.

  • European Works Council Directive 2009/38/EC
  • S Laulom, 'The Flawed Revision of the European Works Council Directive (2010) 39(2) Industrial Law Journal 202-208.

Collective bargaining[edit]

Otto Kahn-Freund (1900-1979) was a Berlin Labour Court judge who fled the Nazi regime in 1933, shaped collective bargaining for the mid-20th century, as a model of "collective laissez-faire".
  • Right to union membership (a) no refusal of employment, and (b) no detriment or dismissal
  • Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924, Mummery LJ, a tribunal had not erred in finding that a worker given a final written warning which was not for the sole purpose of a penalty for trade union activities, was not a detriment under TULRCA 1992 s 146.
  • Members rights to time off for recognised union duties
  • Right against union membership, so no closed shop
  • Right to be represented by unions in disciplinary or other hearings
  • Right to union representatives to time off for union duties
  • Right of the union to be represented for the purpose of collective bargaining
  • Union statutory recognition under TULRCA 1992 Sch A1
  • Certifying trade union independence
  • Collective agreements not, without the contrary intention expressed, legally binding

Collective action[edit]

The ability of a trade union to ensure that an employer abides by a collective agreement, or any worker rights, is contingent upon the extent of workers' right to take collective action, including the right to strike. The right of workers to collectively withdraw their labour in protest is also seen as necessary for the maintenance of a democratic society, and has frequently been used as a protest against political repression (since the Peasants' Revolt of 1381), to prevent military coups against democratic governments (e.g. the general strike in Germany against the Kapp Putsch in 1920), or as part of resistance to dictatorships (e.g. in the 2008 Egyptian general strike and the Egyptian Revolution of 2011). Anti-democratic regimes necessarily suppress collective action by workers, and for this reason the right to strike is regarded as a fundamental human right in international law. Protection is express in the case law of the European Court of Human Rights under article 11,[182] in the EU Charter of Fundamental Rights article 28, and implicitly in the ILO Convention 87 (1948) articles 3 and 10.[183] However, because of its importance for upholding democratic society, and furthering the economic and social interests of people at work, the right to take collective action has a controversial history at common law. It was heavily constrained by the Trade Union and Labour Relations (Consolidation) Act 1992 in sections 219 to 246, meaning the UK falls below international standards in several respects.

First, the objectives and targets of a strike were tightly constrained by TULRCA 1992. Underneath statute, the common law was ambivalent to collective action. In cases such as Mogul Steamship Co Ltd v McGregor, Gow & Co,[184] and Crofter Hand Woven Harris Tweed Co Ltd v Veitch[185] the House of Lords held there was a common law right to collective bargaining and collective action.[186] However on other occasions, such as the notorious Taff Vale case[187] and Quinn v Leathem,[188] or Rookes v Barnard,[189] differently composed courts held that at common law trade union would be liable for the economic loss caused to an employer for organising a strike.[190] On this view, even though an employer might not be liable for the economic losses of unemployment caused if it collectively dismisses workers (because contract terms drafted by the employer invariably allowed it) a union could be liable to the employer. A general framework has been that liability could exist on the grounds of various economic torts (particularly conspiracy to injure,[191] inducement of breach of contract,[192] or tortious interference with a contract[193]) unless statute grants a specific immunity for the trade union from civil liability.[194] In TULRCA 1992 section 219 repeats the classic formula,[195] that collective action by a trade union does not bring liability if done "in contemplation or furtherance of a trade dispute". But although statute presumes that there can be liability on a union at common law for strike action, the issue is not finally resolved.

  • Who may be the target, or what can be the objective, of the strike? (trade dispute, secondary, political action)
    • RMT v United Kingdom [2014] ECHR 366, restrictions on solidarity (or secondary) action within margin of appreciation under article 11
    • TULRCA 1992 s 244, no political action
  • Before a strike, what needs to be done to claim the right? (balloting, notifications)
  • During a strike, what can employees and employers do? (picketing, dismissal, benefits)
  • What sanctions does an employer have if there are violations of the rules? (injunctions and damages)

Equality[edit]

The US civil rights movement led to the Civil Rights Act 1964, the first modern equality law. EU law and the Equality Act 2010 follows this.

The Equality Act 2010 embodies the principle that people should treat one another according to the content of their character, and not another irrelevant status, to foster social inclusion. This principle, which slowly became fundamental to common law,[196] and EU law,[197] goes beyond employment, to access private and public services. At work, the law largely builds on the minimum standards set in three basic Directives for the whole EU.[198] Beyond the absolute prohibitions on discriminating against trade union members,[199] the EA 2010 protects the characteristics of gender (including pregnancy), race, sexual orientation (including marital status), belief, disability and age.[200] Atypical workers, who have part-time, fixed-term, or agency contracts, are also protected under specific regulations.[201] But although equality legislation explicitly prohibits discrimination on just ten grounds,[202] the common law may also extend protection if employers treat workers unfairly for other reasons that are irrelevant or arbitrary.[203] "Direct" discrimination is when a worker is treated less favourably because of a protected characteristic (e.g. gender or race) compared to another person (with a different gender or race), unless employers can show that a person's characteristic is a "genuine occupational requirement".[204] "Indirect" discrimination is when employers apply a neutral rule to all workers, but this has "disparate impact" on people with a particular protected characteristic, and the rule cannot be "objectively justified". Workers have a right to not suffer harassment at work. Claimants may not be victimised for bringing a discrimination claim. Equal pay between men and women has historically been treated separately in law, with subtle differences (sometimes more or less favourable). The law on disability is more favourable, by placing positive duties on employers to make reasonable adjustments to include disabled people in society. While UK and EU law presently only allow promotion of underrepresented groups if a candidate is equally qualified, it is still debated whether more “positive action” measures should be implemented, particularly to tackle the gender pay gap, and over-representation of white men in senior positions. If discrimination is proven, it is a statutory tort, and it entitles a worker to quit and/or claim damages.

Discrimination[edit]

Under the Equality Act 2006, the Equality and Human Rights Commission, with offices near City Hall, London, promotes equality by intervening in discrimination cases, providing guidance and making investigations into workplace practices.

UK and EU law divide discrimination into direct and indirect forms. Direct discrimination means treating a person, because of a "protected characteristic", less favourably than a comparable person who has a different type of gender, race, sexual orientation, etc.[205] This is an objective test, so the employer's motives are irrelevant. Even if employers have “positive” motives, for instance to help underprivileged groups, discrimination is still unlawful in principle.[206] The claimant's trait merely has to be the reason for the unfavourable treatment.[207] An appropriate comparator is one who is the same in all respects except for the relevant trait, which is claimed as the ground for discrimination. For instance in Shamoon v Chief Constable of the Royal Ulster Constabulary[208] a chief inspector claimed that she was dismissed because the police force was sexist, and pointed to male chief inspectors who had not been treated unfavourably. The House of Lords overturned a Tribunal finding of sex discrimination because colleagues had complained about how Ms Shamoon had performed appraisals, and her chosen comparators had not received complaints.[209] Generally there is, however, no need to point to an actual comparator, so a claimant can allege they were treated less favourably than a hypothetical person would have been, who is the same except for the protected characteristic. The burden of proof is explicitly regulated so that claimants merely need to show a set of facts from which a reasonable tribunal could conclude there was discrimination, and need not show an intention to discriminate.[210] Because the law aims to eliminate the mindset and culture of discrimination, it is irrelevant whether the person who was targeted was themselves a person with a protected characteristic, so that people who associate with or are perceived to possess a protected characteristic are protected too. In Coleman v Attridge Law a lady with a disabled child was abused by her employer for taking time off to care for the child. Even though Ms Coleman was not disabled, she could claim disability discrimination.[211] And in English v Sanderson Blinds Ltd, a man who was from Brighton and went to boarding school was teased for being gay. Even though he was married with children, he successfully claimed discrimination on grounds of sexual orientation.[212] An instruction by an employer to discriminate against customers or anyone else also violates the law.[213]

"Indirect" discrimination means an employer, without an objective justification, applies a neutral rule to all employees, but it puts one group at a particular disadvantage.[214] However, the particular disadvantage is irrelevant if it involves a discriminatory state of mine. In Ladele v Islington LBC a woman who refused to register gay civil partners, because she said her Christianity made her conclude homosexuality was wrong, was dismissed for not carrying out her duties. Lord Neuberger MR held that she was not unlawfully discriminated against because the Council was objectively justified in following its equality policy: that everyone working in marriage or partnership registries had to register everybody equally.[215] The European Court of Human Rights upheld this decision. By contrast, in Eweida v British Airways plc a lady who wished to wear a cross claimed that BA's instruction to remove it was indirectly discriminatory against Christians. Although the English Court of Appeal held crucifix jewellery is not an essential part of the Christian religion,[216] the ECHR found that, under the reasonableness limb of the proportionality test, it was an illegitimate interference with Ms Eweida's religious beliefs under ECHR article 9. British Airways changed its uniform policy shortly afterwards in any case, and this indicated that they had acted unlawfully. The question of particular disadvantage also typically relies on evidence of statistical impact between groups. For instance in Bilka-Kaufhaus GmbH v Weber von Hartz[217] an employer set up pensions only for full-time workers, and not for part-time workers. But 72 per cent of part-time workers were women. So Frau Weber von Hartz was able to show that this rule put her, and women generally, at a particular disadvantage, and it was up to the employer to show there was an objective justification. Statistics might be presented in a misleading way (e.g. a measure could affect twice as many women as men, but that is only because there is 2 women and 1 man affected in a workforce of 100). Accordingly the correct approach is to show how many people in the affected workforce group are put at an advantage, and then if there is a statistically significant number of people with a protected characteristic who are not advantaged, there must be an objective justification for the practice. In R (Seymour-Smith) v Secretary of State for Employment[218] the UK government's former rules on unfair dismissal were alleged to be discriminatory. Between 1985 and 1999, the government had made the law so that people had to work for 2 years before they qualified for unfair dismissal (as opposed to 1 year presently), and this meant that there was a 4 to 8 per cent disparity between the number of men and women who qualified on dismissal for a tribunal claim. Following ECJ guidance, the House of Lords held by a majority that this was a large enough disparity in coverage, which required justification by the government.

People celebrate "Equal Pay Day" in Berlin. The Equal Treatment Directive,[219] which the Equality Act 2010 sections 64 to 71 follow, covers everyone in the EU, but the law so far has let the gender pay gap persist.

A significant exception to the basic framework for indirect discrimination is found for the issue of equal pay between men and women.[220] Because the Equal Pay Act 1970 preceded other legislation, and so did the TFEU article 157,[221] there has always been a separate body of rules. It is not entirely clear why this should continue, or whether the equal pay rules are more favourable. First, a claim must relate to "pay", concept which is generally construed widely to encompass any kind of remuneration for work, as well as sick pay or for maternity leave.[222] Second, under the EA 2010 section 79, a comparator must be real, and employed by the same employer, or an associated employer, and at the same establishment, or a different establishment if common terms apply.[223] It is usually harder to find a real comparator than imagine a hypothetical one. Third, under EA 2010 section 65, the claimant must be doing "broadly similar" work to the comparator, or work "rated as equivalent", or work which is of "equal value". These criteria, which at their broadest focus on the "value" of labour, make explicit what a court must taken into account, but also potentially constrain the court in a way that the open ended test for indirect discrimination does not. Fourth, under section 128 there is a time limit of six months to bring a claim, but unlike the three month time limit for other discrimination claims it cannot be extended at the court's discretion. However, equal pay claims do import an "equality clause" into the claimant's contract of employment. This allows a claim to be pursued in the High Court as well as a Tribunal. But whether the rules are more favourable in some respects or not, it is unclear what principle justifies the segregation of unequal pay claims based on sex, compared to all other protected characteristics.[224]

Originally a sub-category of direct discrimination, harassment is now an independent tort which requires no comparator. The Protection from Harassment Act 1997, and now the Equality Act 2010 sections 26 and 40, define harassment as where a person's dignity is violated, or the person is subject to an intimidating, hostile, degrading, humiliating or offensive environment. An employer will be liable for its own conduct, but also conduct of employees, or customers if this happens on 2 or more occasions and the employer could be reasonably expected to have intervened.[225] In a straightforward case, in Majrowski v Guy's and St Thomas' NHS Trust[226] a gay man was ostracised and bossed about by his supervisor from the very start of his work as a clinical audit co-ordinator. The House of Lords held the laws create a statutory tort, for which (unless a statute says otherwise) an employer is automatically vicariously liable. Under the Equality Act 2010 section 27, an employer must also ensure that once a complaint is brought by a worker, even if it ultimately proves to be unfounded, that worker should not be victimised. This means the worker should not be subject to anything that a reasonable person would perceive as detrimental. In St Helen’s MBC v Derbyshire[227] the House of Lords held a council victimised female staff who were pursuing an equal pay claim when it sent letters warning (without much factual basis) that if the claim went ahead, the council would be forced to cut school dinners and make redundancies. Because it attempted to make the workers feel guilty, a reasonable person would have regarded this as a detriment. By contrast, in Chief Constable of West Yorkshire Police v Khan,[228] a sergeant with a pending race discrimination claim was denied a reference by the employer that he was suing. The House of Lords held this could not be considered victimisation because the Constabulary was only seeking to protect its legitimate interests by not giving a reference, so as to not prejudice its own future case in the discrimination hearings.

Justification[edit]

Harassment and victimisation cannot be justified, but in principle there are exceptions or justifications for all forms of direct and indirect discrimination. Apart from direct age discrimination which can also be objectively justified, the general rule for direct discrimination, elaborated in EA 2010 Schedule 9,[229] is that an employer may only be exempt if it can show that having a worker fit a particular description is a "genuine occupational requirement". This means the (otherwise) discriminatory practice must pursue a legitimate aim in terms of the nature of the occupation itself (not the employer's business needs generally) and the practice must be proportionate. The test is stringent. In Etam plc v Rowan[230] a man was turned down for a job at a woman's clothing store, with the excuse that a man should not operate women's change rooms. But this did not count as a genuine occupational requirement because the shift allocation could have been easily changed. By contrast, it was held in Wolf v Stadt Frankfurt am Main that a requirement to be under 30 years old when joining the fire service could be a genuine occupational requirement, to ensure fitness.[231] Controversially, the European Court of Justice has repeatedly said that it is within a member state's margin of discretion to say being male is a genuine occupational requirement for work in the military.[232] This was even so, in Sirdar v The Army Board & Secretary of State for Defence,[233] for a lady who applied to work as a chef in the Royal Marines, because the policy on "interoperability" meant every member had to be capable of combat.[234] Cases involving religion are subject to a special provision, so that if a job's functions require adherence to an organisation's ethos, the organisation has an exemption from direct discrimination. In an action for judicial review of the legislation,[235] Richards J rejected that a faith school would be exempt in any way, rather than an actual religious establishment like a church. Even there, it was rejected that a gay person could be dismissed from a job as a cleaner or bookshop worker, if that was incompatible with the religious "ethos", because the ethos would not be a genuine requirement to carry out the job.

In 2008, the gender pay gap in the EU averaged men being paid 17.5% more than women, and the UK's gap was higher than average, at 21.4%.

Indirect discrimination, after a neutral practice puts a member of a group at a particular disadvantage, is not made out if there is an "objective justification". In most cases, this will be a justification based on business necessity.[236] The ECJ, mostly in cases concerning sex discrimination under TFEU art 157, has held that an employer must show a "real need" for the practice that has a disparate impact, and it must be "unrelated" to the protected characteristic.[237] The justification should not involve "generalisations" rather than reasons specific to the workers in question,[238] and budgetary considerations alone are not to be considered an "aim".[239] Many foundational judgments concerned employers who gave fewer benefits to part-time staff than full-time staff. Given the particular disadvantage this caused women it was hard to justify. In domestic equal pay claims based on gender, instead of "objective justification", the old terminology still used is that there must be a "genuine material factor", found in EA 2010 section 69. Despite different headings, the same underlying concepts are present as for objective justification, with the need to show a "legitimate aim" and that action is "proportionate" to such an aim. In Clay Cross (Quarry Services) Ltd v Fletcher[240] Lord Denning MR held that an employer could not justify paying a young man a higher wage than an older lady (who in fact trained him) on the basis that this was what the employer had to pay given the state of the job market. However, in Rainey v Greater Glasgow Health Board[241] the House of Lords held that women NHS prosthetists who were paid 40% less than men prosthetists, who had become contracted through private practices, had no claim because it was agreed that such higher prices were necessary to attract their services. Thus, the "objective justification" was said to be an organisational necessity.[242] In Enderby v Frenchay Health Authority[243] the ECJ held that although a speech therapist being paid less than a male counterpart could not be justified only on the ground that this resulted from different collective agreements, if a disparity came from market forces, this was an objective justification. It has, however, been emphasised that the legislation's purpose is to achieve equal pay, and not fair wages. So in Strathclyde RC v Wallace[244] the House of Lords held that women teachers who had to fill in for an absent male head master were not entitled to be paid the same during that time. This was a different job. It has also been asserted that collective agreements designed to incrementally make a transition to equal pay between jobs rated as equivalent cannot be justified,[245] and can even result in liability for the union that concluded them.[246] Unlike other protected characteristics, under EA 2010 section 13(2), direct age discrimination is open to justification on the same principles, on the basis that everyone will go through the ageing process.[247] This has meant, primarily, that older workers can reach a compulsory retirement age set either by the workplace or the government, on the basis that it is a legitimate way of sharing work between generations.[248]

Disability and positive action[edit]

According to Chacón Navas v Eurest Colectividades SA[249] disabilities involve an impairment "which hinders the participation of the person concerned in professional life". This includes all varieties of mental and physical disabilities.[250] Because treating disabled people equally based on ability to perform tasks could easily result in persistence of exclusion from the workforce, employers are bound to do as much as reasonably possible to ensure participation is not hindered in practice. Under the Equality Act 2010 sections 20 to 22, employers have to make "reasonable adjustments". For example, employers may have to change physical features of a workplace, or provide auxiliary aids to work, or adjust their working habits and expectations. In effect, the law holds the social model responsible for the exclusion of disabled people, rather than seeing a person's disability itself as being the relevant cause. EA 2010 Schedule 8 lists more examples of reasonable adjustments, and the Equality and Human Rights Commission provides guidance. In the leading case, Archibald v Fife Council,[251] it was held that the council had a duty to exempt a lady from competitive interviews for a new job. Mrs Archibald, previously a road sweeper, had lost the ability to walk after complications in surgery. Despite over 100 applications for grades just above a manual worker, in her submission, the employers were fixated on her past history as a sweeper. The House of Lords held it could be appropriate, before such an ordeal, for a worker to fill an existing vacancy without a standard interview procedure. By contrast, in O’Hanlon v Revenue and Customs Commissioners[252] the Court of Appeal rejected that it would be a reasonable adjustment, as Ms O'Hanlon was requesting after falling into clinical depression, for an employer to increase sick pay to full pay, after the expiry of a six month period that applied to everyone else. The aim is always to ensure that disabilities are not a barrier to full participation in working life, as much as possible.

An increasing number of EU member states, though not yet the UK, require company boards of directors to have gender quotas. For example, Finland requires that companies comply with the standard of a 50-50 gender split, or explain to the market if they do not reach the target.

For characteristics other than disability, "hard" positive discrimination, through privileged contract terms, hiring and firing based on gender, race, sexuality, belief or age, or setting quotas for underrepresented groups in most jobs, is unlawful throughout the EU. This policy, however, leaves open the issue of historical disadvantage, and sub-conscious exclusion, which may not be addressed through ordinary direct and indirect discrimination claims. The EU has permitted "soft" positive action, in contrast to the United States or South Africa, where "affirmative action" operates in many workplaces.[253] Lawful positive action in the EU means, in the case of hiring candidates for work, employers may select someone from an under-represented group, but only if that person has qualifications equal to competitors, with full consideration of the candidate's individual qualities.[254] In Marschall v Land Nordrhein Westfalen[255] a male teacher failed to get a promotion, and a woman did. He complained that the school's policy, to promote women "unless reasons specific to an individual candidate tilt the balance in his favour", was unlawful. The ECJ held the school would not be acting unlawfully if it did in fact follow its policy. By contrast in Abrahamsson and Anderson v Fogelqvist[256] Göteborg University's policy was to hire a woman candidate unless "the difference between the candidates’ qualification is so great that such application would give rise to a breach of the requirement of objectivity". A male candidate, who was not hired over two less qualified women, was successful in claiming discrimination. In addition, according to Re Badeck’s application[257] legitimate positive action measures include quotas in temporary positions, in training, guaranteeing interviews to people with sufficient qualifications, and quotas for people working on representative, administrative or supervisory bodies such as a company's board of directors. This approach, developed initially in ECJ case law, is now reflected in the Treaty on the Functioning of the European Union article 157(4) and was put into UK law in the Equality Act 2010 sections 157-158.

Atypical work[edit]

Beyond the Equality Act 2010 three EU Directives,[258] and UK Regulations, require minimum levels of equal treatment for people with part-time, fixed-term or agency work contracts, compared to people with more permanent or full-time jobs. Many people choose atypical work patterns to balance family or social commitments, but many are also in precarious work, where they lack the bargaining power to get better terms. However, the requirements for equal treatment are not uniform, and are often limited. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000[259] state that a part-time worker cannot be treated less favourably than a comparable full-time worker. However (like for age) an employer may objectively justify less favourable treatment for both direct and indirect discrimination. Moreover (similar to equal pay rules) under regulation 2(4) a worker can only compare themselves to real full-time workers who work under the "same type of contract" doing "broadly similar work", and are in the same establishment, or under a common collective agreement. In Matthews v Kent and Medway Fire Authority,[260] the House of Lords held that even though part-time firefighters did not do administrative work, their contracts were still broadly similar to the full-time firefighters. But although rights are strong in law to counteract people being treated differently in the same workplace, part-time workers across the UK economy remain underpaid compared to full-time workers as a whole. Workplaces tend to be structurally segregated, so many jobs, often where women are working, are all part-time while better paying jobs tend to be full-time.[261] The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002[262] cover people with contracts that purport to last for a limited duration. The Regulations (unlike the Directive appears to require) were written to only cover "employees" and not the broader group of "workers".[263] In contrast, the European Court of Justice held in Mangold v Helm that equality was a general principle of EU law. This meant that a German law which carried gave no protection to fixed-term workers beyond the age of 52.[264] They also ban on less favourable treatment of fixed-term staff without objective justification.[265] But also, regulation 8 stipulates that if an employee has a succession of fixed term contracts lasting over 4 years, they are to be treated as having a permanent contract.[266] In practice, UK law already regulated fixed-term work in this respect, because the qualifying period for unfair dismissal will be met even if an employee has had short breaks in employment.[267]

The deaths of 21 immigrant cockle pickers at Morecambe Bay led to re-legislation to require employment agencies to be licensed, in the Gangmasters (Licensing) Act 2004.

The Agency Workers Regulations 2010 provide workers some protection against less favourable treatment when they work through an employment agency. However, the right to equal treatment is limited to "basic working conditions", which is defined as pay and their working time, unless the common law, or general EU law principles are applicable.[268] But an agency worker may, unlike part-time or fixed-term employees, appeal to a hypothetical comparator. This left uncertain the position of agency workers protection by the job security, child care and other rights for employees in ERA 1996.[269] While the dominant view, after the UK Supreme Court decision in Autoclenz Ltd v Belcher,[270] is that an agency worker will always qualify as an employee against both the agency and end-user when they work for a wage, the English Court of Appeal had previously issued conflicting judgments on whether an agency worker should have an unfair dismissal claim against the end-employer, the agency, or both or neither.[271] Reflecting their vulnerable position, the regulation of agency work goes beyond anti-discrimination rights, to place a set of duties on employment agents' operations and conduct. Found in the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003[272] agencies are generally prohibited from charging fees to prospective workers. Various other duties include being honest in their job advertising, keeping all information on jobseekers confidential and complying with all employment laws. Originally agencies had to have licenses, and under the oversight of the Employment Agency Standards Inspectorate, they risked losing their licenses if found to be acting in violation of the law. The Deregulation and Contracting Out Act 1994 removed the licensing requirement, but this was partially reinstated for agencies in agricultural, shellfish and packing sectors through the Gangmasters (Licensing) Act 2004. In response to the 2004 Morecambe Bay cockling disaster this established another specific regulator, the Gangmasters Licensing Authority, to enforce employment law in those areas.

Free movement and immigration[edit]

Job security[edit]

Unemployed men at a union building during the first global Great Depression, July 1930. A country comparative database on the world's dismissal regulations is found at www.ilo.org.

Originating with the Contracts of Employment Act 1963, the Redundancy Payments Act 1965 and the Industrial Relations Act 1971 UK workers have three principal job security rights, now consolidated in the Employment Rights Act 1996, sections 86, 94 and 135. These statutory provisions override the old common law position that a dismissal would only be wrongful if it contravened the contract's express or implied terms. First, after one month's work an employee must have one week's notice before dismissal. Second, after one year's work, the dismissal must be for a good business reason. If an Employment Tribunal is not convinced the dismissal is justified on grounds of an employee's capability, conduct, redundancy or another good reason, the dismissal will be "unfair" and the employee will be awarded damages. A court may order that an employee should get their job back, but this is rare. Third, after two years' work and if dismissed, an employee is entitled to a redundancy payment, which like the notice period increases according to the number of years worked. Contracts typically go beyond this bare minimum, but cannot go below. The UK has not yet ratified the ILO Termination of Employment Convention[273] and compared to its European and Commonwealth counterparts, jobs in the UK are relatively insecure, particularly since workers have little formal mechanism, excluding pressure through collective bargaining, to challenge a management's decision about dismissals before they take place. When collective redundancies are proposed, however, EU law has introduced a requirement that employers consult on changes.[274] EU law also introduced a rule that if a business is transferred, for instance, during a merger or acquisition, employees may not have their terms worsened or lose their jobs without a good economic, technical or organisational reason. If employees do lose their work, they may fall back on a minimal system of state insurance, funded primarily through income tax or National Insurance, to collect a "jobseekers allowance", and may make use of public employment agencies to find employment again.

Wrongful dismissal[edit]

Main article: Wrongful dismissal

Wrongful dismissal refers to a termination of employment which contravenes a contract's terms, whether expressly agreed or implied by the courts. This depends on construction of the contract, read in the context of the statutory charter of rights for employees in the ERA 1996.[275] In the old common law cases, the only term implied by the courts regarding termination was that employers had to give reasonable notice, and what was "reasonable" essentially depended on the professional status of the employee. In Creen v Wright[276] Lord Coleridge CJ held that a master mariner was entitled to a month's notice, though lower class workers could probably expect much less, "respectable" employees could expect more, and the period between wage payments would be a guide.[277] Now the ERA 1996 section 86 prescribes that an employee should receive one week's notice before dismissal after one month's work, two weeks' notice after two years' work, and so forth up to twelve weeks for twelve years. The employer can give payment of the weeks' wages instead of giving notice. Another important express term that may be broken could be the proper disciplinary procedure for disputes at work. If a contractual disciplinary procedure is not followed, the employee may claim damages for the time it would have taken and the potential that she would still be employed.[278]

The requirements of notice and any disciplinary procedure do not apply if the employee was the one to have repudiated the contract, either expressly, or by conduct. As in the general law of contract, if an employee's conduct is so seriously bad that it manifests to the reasonable person an intention to not be bound, then the employer may dismiss the employee without notice. But if the employer is not justified in making a summary dismissal, the employee has a claim under ERA 1996 section 13 for a shortfall in wages. The same principle, that a serious breach of contract gives the other side the option to terminate,[279] also works in favour of employees. In Wilson v Racher[280] a gardener was bullied by his employer, the heir of Tolethorpe Hall, and gave him a rude telling off for not picking up some string on the lawn. Mr Wilson, the gardener, told Mr Racher "get stuffed, go and shit yourself". The Court of Appeal held that the employer's attitude meant this breakdown in trust and confidence was his own doing, and because labour law no longer saw employment as a "czar-serf" relationship, Mr Wilson was in the right and was wrongfully dismissed. The remedy for breach of contract, following a long tradition that specific performance should not result in draconian consequences or binding hostile parties to continue working together,[281] is typically monetary compensation to put the claimant in the same position as if the contract had been properly performed.

The primary implied term that may be broken is mutual trust and confidence. In Johnson v Unisys Ltd[282] the House of Lords held by 4 to 1 that damages for breach of mutual trust and confidence at the point of dismissal should not exceed the statutory limit on unfair dismissal claims, because otherwise the statutory limits (£63,500 in 2010) would be undermined. This meant a computer worker who became psychiatrically ill following a wrongful dismissal procedure could not claim the £400,000 at which damages could otherwise be quantified. However, if the breach occurs while the employment relationship subsists, that limit is inapplicable. So in Eastwood v Magnox Electric plc,[283] a school teacher who also suffered psychiatric injury, but as a result of harassment and victimisation while he still worked, could claim for a full measure of damages for the breach of mutual trust and confidence. In any event the limit is merely implied and depends on construction of the contract, so that it may be opted out of by express words providing for a higher sum, for example, by expressly providing for a disciplinary procedure.[284] A notable absence of an implied term at common law historically (i.e. before the development of mutual trust and confidence[285]) was that an employer would have to give any good reasons for a dismissal.[286] This was recommended to be changed in the Donovan Report 1968, and it launched the present system of unfair dismissal.

Unfair dismissal[edit]

Main article: Unfair dismissal

In contrast to "wrongful" dismissal, which is an action for unjustified breach of the terms of an employment contract, "unfair" dismissal is a claim based in the Employment Rights Act 1996 sections 94 to 134A that governs the reasons for which a contract is terminated. The Industrial Relations Act 1971, following the Donovan Report 1968, set up its structure.[287] Under ERA 1996 section 94 any employee who is employed for over two years[288] may claim for an Employment Tribunal (composed of a judge, an employer and an employee representative) to review the decision of their dismissal, and get a remedy if the dismissal was not "fair" within the meaning of the Act. An employee is only "dismissed" if the employer has decided to end the work relationship, or if they have constructively dismissed the employee through a serious breach of mutual trust and confidence. In Kwik-Fit (GB) Ltd v Lineham[289] Mr Lineham used the toilet at work after drinking at the pub, and in response to the manager rebuking him in front of other staff, he threw down his keys and drove off. He claimed he was dismissed, and the Tribunal agreed that at no time had Mr Lineham resigned. By contrast in Western Excavating (ECC) Ltd v Sharp[290] Mr Sharp walked off because the company welfare officer refused to let him collect holiday pay immediately. Although Mr Sharp was in financial difficulty, this was due to his absences, and so he was not justified in leaving, and not constructively dismissed.[291] An employee is also not dismissed if the relationship is frustrated. In Notcutt v Universal Equipment Co (London) Ltd[292] a man's heart attack meant he could no longer work. The employer paid no wages during the ordinary notice period, but was successful in arguing that the contract was impossible to perform and therefore void. This doctrine, applicable as a default rule in general contract law, is controversial since unlike commercial parties it will be rare that an employee has the foresight or ability to contract around the rule.[293]

Once it is established that a dismissal took place, the employer must show that their reason for dismissing the employee was "fair". Dismissal on grounds of union membership,[294] or any protected characteristic in the Equality Act 2010, will be automatically unfair. Otherwise the employer has the opportunity to show the dismissal is fair if it falls within five main categories listed in ERA 1996 section 98.[295] The dismissal must have been because of the employee's capability or qualifications, conduct, because the employee was redundant, because continued employment would contravene a law, or "some other substantial reason". If the employer has an argument based on one of these categories, then the tribunal evaluates whether the employer's actual decision fell within a "reasonable range of responses", i.e. that a reasonable employer could have acted the same way.[296] Thus the review standard lies in between an outright perversity, or "Wednesbury unreasonableness" test and a forthright reasonable person test. It gives employers considerable latitude in the way they manage their workforce, as the Tribunal's job is not to substitute what it believes would have been fair, but only to intervene if a decision was arbitrary, harsh or contrary to acceptable business practice.[297] There is also considerable room for Tribunals to assess the facts and come to their own conclusions, which can only be appealed on legal grounds, and not on their judgment of good workplace relations. For example, in a conduct case, HSBC Bank plc v Madden,[298] the Court of Appeal held that it was acceptable for a Tribunal to have decided that dismissing an employee for potential involvement in theft of credit cards was fair, even though an actual police investigation turned up no evidence.[299] By contrast, in Bowater v Northwest London Hospitals NHS Trust,[300] an employer argued a nurse who, while physically restraining a naked patient, said "It's been a few months since I have been in this position with a man underneath me" was lewd and deserved dismissal for her misconduct. The Tribunal said the dismissal was unfair and the Court of Appeal held the Tribunal had competently exercised its discretion in granting the unfair dismissal claim.

ACAS, headquartered at Euston Tower, issues a binding Code of Practice on how to handle workplace disputes and potential dismissals.

Partly because the courts take a deferential approach to the employer's substantive reasons for dismissal, they emphasise the importance of employers having a fair process. The Advisory, Conciliation and Arbitration Service Code of Practice (2009) explains that good industry practice for disciplinaries requires, among other things, written warnings, a fair hearing by people who have no reason to side against the employee, or with any manager involved in the dispute, and the opportunity for union representation. Often a company handbook will include its own system, which if not followed will likely mean the dismissal was unfair.[301] Nevertheless, in Polkey v AE Dayton Services Ltd[302] the House of Lords held that, in a case where a van driver was told he was redundant on the spot, if an employer can show the dismissal would be made regardless of whether a procedure was followed, damages can be reduced to zero. In the Employment Act 2002, Parliament made an abortive attempt to instil some kind of mandatory minimum procedure for everybody, but after complaints from unions and employers alike that it was merely encouraging a "tick-box" culture, it was repealed in the Employment Act 2008.[303] Now if the ACAS Code is not followed, and this is unreasonable, an unfair dismissal award can be increased by 25 per cent.[304] Generally, under ERA 1996 sections 119 and 227, the principle for a "basic" unfair dismissal award is that, with a cap of £350 per week and a maximum of 20 weeks, an employee should receive one week's pay for each year employed if aged between 22 and 40, 1½ weeks if over 40 and ½ a week if under 22. By ERA 1996 section 123, the employee may also be entitled to a discretionary "compensatory" award, which should take into account the actual losses of the employee as just and equitable, based on loss of immediate and future wages, the manner of the dismissal and loss of future unfair dismissal protection and redundancy rights.[305] This is capped, but usually increased in line with RPI inflation, and in 2010 stood at £63,500. Much lower, the median award for unfair dismissal, without any element of discrimination, was £4903 in 2009–2010.[306]

Redundancy[edit]

An economic dismissal because of redundancy is a "fair" reason, but one that triggers a minimum statutory right to a redundancy payment. Under ERA 1996 section 162, a redundant employee who has been employed for over two years is entitled to one week's wages per year worked if aged between 22 and 40, one and a half weeks' pay if over 40 and half a week's pay if under 22. The upper limit is £240 per week. The meaning of redundancy under ERA 1996 section 139 is that diminished demand for the employee's labour was the reason for the dismissal.[307] In situations where employees have lost their jobs, this may be straightforward. In cases where an employer uses its discretion practically to worsen the employees' position the answer may depend on the employees' contracts. In Lesney Products & Co v Nolan[308] a toy company stopped giving its workers overtime. Some refused to work further, they were dismissed, and they claimed they were redundant. Lord Denning MR held they were not, because "nothing should be done to impair the ability of employers to reorganise their work force and their times and conditions of work so as to improve efficiency." Other courts have suggested the contract terms are irrelevant, and that the test should be purely based on the economic reality of diminished demand.[309] If an employee is not dismissed for redundancy it may be that the dismissal falls within the "fair" ground of "some other substantial reason". In Hollister v National Farmers’ Union[310] a farmer's refusal to accept decreased pension entitlements, after a consultation process, was a "substantial" reason for dismissal. Provided employers give proper notice and have the right to terminate the contract by consent, it is possible to worsen terms without the employee being able to claim redundancy.

Employees of over 2 years who are made redundant must receive a severance payment to cushion them in the search for their next job.

When compulsory redundancies are unavoidable and the employer must select among a group of workers, the procedure the employer follows must be procedurally fair, or the workforce will have an unfair dismissal claim. In Williams v Compair Maxam Ltd[311] Browne-Wilkinson J held that, in response to managers who had selected workers to lose their jobs based on personal preference, the proper steps should be to (1) give all warning possible (2) consult the union (3) agree objective criteria (4) follow those criteria, and (5) always check there if there is alternative employment rather than dismissal. Under ERA 1996 section 141 an employee should accept a reasonable offer for redeployment, and will lose entitlement to redundancy if she declines it. The Collective Redundancies Directive,[312] implemented in TULRCA 1992 section 188 also requires collective consultation with the union or other elected workforce representatives. If the employer fails to consult in good time it will be liable to pay a protective award to its staff.[313]

Business transfers and insolvency[edit]

Another context in which the common law left workers particularly vulnerable was where the business for which they worked was transferred between one person and another. In Nokes v Doncaster Amalgamated Collieries Ltd[314] it was held (albeit to protect the worker from draconian sanctions in the arcane Employers and Workmen Act 1875) that an employment contract could not transfer without the consent of the parties involved. Consequently, in a situation where company A sold its assets (including contracts) to company B, the employment relationship would sever and the only claim a worker would have for dismissal would be against company A. Particularly from the 1950s, the view was increasingly accepted across Europe that workers have something more than a personal right, and akin to a property right in their jobs.[315] Just as the transfer of a freehold property between two landlords would not mean that a tenant could be evicted,[316] the first Business Transfers Directive, passed in 1978 and updated in 2001 (often still referred to as the "Acquired Rights Directive"), required that a business transferee would have to provide a good economic, technical or organisational reason if they were either to not retain all previous employees, or wanted to make detrimental variations to their workers' contracts. This means that the new employer who is a transferee of a business through an asset sale is in no better position than would be a new owner who gained control of a business by buying out a company's shares: contractual variations require the employees' consent and dismissal rights remain as if it were the old employer. As implemented by the Transfer of Undertakings (Protection of Employment) Regulations 2006, a clear example where employees contracts transfer was in Litster v Forth Dry Dock.[317] The House of Lords held that a purposive interpretation is to be given to the legislation so that where 12 dockworkers were sacked an hour before a business sale, their contracts remained in effect if the employees would still be there in absence of an unfair dismissal. This does not, however, mean that employees unfairly dismissed before a sale have a right to their jobs back, because national law's normal remedy remains with a preference for damages over specific performance.[318] The same principle goes for any variation that works to the detriment of the employee. So the transferee employer may not (without a good business reason) for example, try to impose a single new gardening clause[319] or withdraw tenure, or the employee will have a claim for constructive dismissal.[320]

An acute question for the TUPE Regulations, particularly in the years when the Conservative government was implementing a policy of shrinking the size of the public sector, was the extent they applied to jobs being outsourced, typically by a public body, like a local council, or changed between businesses in a competitive tender process for public procurement. On this point a series of ECJ decisions came to the view that there could be a relevant transfer, covered by the Directive, even where there was no contractual link between a transferor and a transferee business,[321] so long as the business entity retained its "identity". In turn the "identity" of a business would be determined by the degree to which the business' factors of production remained the same before and after a sale.[322] It could be that no employees were hired after an asset sale, but the sacked employees would still have a claim because all their old workplace and capital equipment was being used by the new employer. It is also relevant to what extent a business is capital or labour-intensive. So in Oy Liikenne Ab v Liskojärvi[323] the ECJ held that it was unlikely that 45 Helsinki bus drivers' contracts were transferred, between the company that lost the contract and the new bus company that won it, even though 33 drivers were rehired, because "bus transport cannot be regarded as an activity based essentially on manpower". On the other hand, employees stand to benefit where a new employer offers old staff their jobs, the intention to rehire makes it more likely the court will deem there to be a transfer.[324]

Often business transfers take place when a company has plunged into an insolvency procedure. If a company enters liquidation, which aims to wind down the business and sell off the assets, TUPER 2006 regulation 8(7) states that the rules on transfer will not apply.[325] The main objective, however, in an insolvency procedure particularly since the Cork Report and the Enterprise Act 2002, is to effect rescues through the system of company administration. An administrator's task under the Insolvency Act 1986 Schedule B1, paragraph 3, is either to rescue the company as a going concern, rescue the business typically by finding a suitable buyer and thus save jobs, or as a last resort put the company into liquidation. If employees are kept on after an administrator is appointed for more than 14 days, under paragraph 99 the administrator becomes responsible for adopting their contracts. The liability on contracts is limited to "wages and salaries".[326] This includes pay, holiday pay, sick pay and occupational pension contributions, but has been held to not include compensation for unfair dismissal cases,[327] wrongful dismissal,[328] or protective awards for failure to consult the workforce before redundancies.[329] If the business rescue does ultimately fail, then such money due employees achieves the status of "super priority" among different creditors' claims.

The Insolvency Act 1986 priority list

1. Fixed charge holders
2. Insolvency practitioner fees and expenses, s 176ZA
3. Preferential creditors, ss 40, 115, 175, 386 and Sch 6
4. Ring fenced fund for unsecured creditors, s 176A and SI 2003/2097
5. Floating charge holders
6. Unsecured creditors, s 74(2)(f)
7. Interest on debts proved in winding up, s 189
8. Money due to a member under a contract to redeem or repurchase shares not completed before winding up, CA 2006 s 735
9. Debts due to members under s 74(2)(f)
10. Repayment of residual interests to preference, and then ordinary shareholders.
Sources: Insolvency Act 1986 and Companies Act 2006

The priority list in insolvency sees creditors with fixed security (typically banks) get paid first, preferential creditors third, unsecured creditors up to a limit of £600,000 third, floating charge holders (usually banks again) fourth, remaining debts to unsecured creditors (in the unlikely event that anything remains) fifth, "deferred debts" (typically to company insiders) sixth, and shareholders last.[330] Among the preferential creditors, the insolvency practitioners' fees together with adopted contracts attain super-priority. Otherwise, employees wages and pensions still have preferential status, but only up to an £800 limit, a figure which has remained unchanged since 1986.[331] Employees having priority among creditors, albeit not above fixed security holders, dates back to 1897,[332] and is justified on the ground that employees are particularly incapable, unlike banks, of diversifying their risk, and forms one of the requirements in the ILO Protection of Workers' Claims (Employer's Insolvency) Convention.[333] Often this limited preference is not enough, and can take a long time to realise. Reflecting the Insolvency Protection Directive[334] under ERA 1996 section 166 any employee[335] may lodge a claim with the National Insurance Fund for outstanding wages. Under ERA 1996 section 182 the amount claimable is the same as that for unfair dismissal (£350 in 2010) for a limit of 8 weeks. If an employee has been unpaid for a longer period, she may choose the most beneficial 8 weeks.[336] The Pensions Act 2004 governs a separate system for protecting pension claims, through the Pension Protection Fund. This aims to fully insure all pension claims.[337] Together with minimum redundancy payments, the guarantees of wages form a meagre cushion which requires more of a systematic supplementation when people remain unemployed.

Unemployment[edit]

An Inland Revenue stamp from 1912 commemorating unemployment insurance.
Unemployed men discuss the growing jobless rate in 1931.

Enforcement and tribunals[edit]

Under the Equality Act 2006,[338] a new Equality and Human Rights Commission was established, subsuming specialist bodies from before. Its role is in research, promotion, raising awareness and enforcement of equality standards. For lawyers, the most important work of predecessors has been strategic litigation[339] (advising and funding cases which could significantly advance the law) and developing codes of best practice for employers to use. Around 20,000 discrimination cases are brought each year to UK tribunals.

International labour law[edit]

Since the industrial revolution the labour movement has been concerned how economic globalisation would weaken the bargaining power of workers, as their employers could move to hire workers abroad without the protection of the labour standards at home.[340] Following World War One, the Treaty of Versailles contained the first constitution of a new International Labour Organisation founded on the principle that "labour is not a commodity", and for the reason that "peace can be established only if it is based upon social justice".[341] The primary role of the ILO has been to coordinate principles of international labour law by issuing ILO Conventions, which codify labour laws on all matters. Members of the ILO can voluntarily adopt and ratify the conventions by enacting the rules in their domestic law. For instance, the first Hours of Work (Industry) Convention, 1919 requires a maximum of a 48 hour week, and has been ratified by 52 out of 185 member states. The UK ultimately refused to ratify the Convention, as did many current EU members states, although the Working Time Directive adopts its principles, subject to the individual opt-out.[342] The present constitution of the ILO comes from the Declaration of Philadelphia 1944, and under the Declaration on Fundamental Principles and Rights at Work 1998 classified eight conventions[343] as core. Together these require freedom to join a union, bargain collectively and take action (Conventions Nos 87 and 98) abolition of forced labour (29 and 105) abolition labour by children before the end of compulsory school (138 and 182) and no discrimination at work (Nos 100 and 111). Compliance with the core Conventions is obligatory from the fact of membership, even if the country has not ratified the Convention in question. To ensure compliance, the ILO is limited to gathering evidence and reporting on member states' progress, so that publicity will put public and international pressure to reform the laws. Global reports on core standards are produced yearly, while individual reports on countries who have ratified other Conventions are compiled on a bi-annual or perhaps less frequent basis.

As one of the few international organisations with real enforcement power through trade sanctions, the WTO has been the target for calls by labour lawyers to incorporate global standards of the International Labour Organisation

Because the ILOs enforcement and sanction mechanisms are weak, there has been significant discussion about incorporating labour standards in the World Trade Organisation's operation, since its formation in 1994. The WTO oversees, primarily, the General Agreement on Tariffs and Trade which is a treaty aimed at reducing customs, tariffs and other barriers to free import and export of goods, services and capital between its 157 member countries. Unlike for the ILO, if the WTO rules on trade are contravened, member states who secure a judgment by the Dispute Settlement procedures (effectively a judicial process) may retaliate through trade sanctions. This could include reimposition of targeted tariffs against the non-compliant country. Proponents of an integrated approach have called for a "social clause" to be inserted into the GATT agreements, for example by amending article XX, which gives an exception to the general trade barrier reduction rules allowing imposition of sanctions for breaches of human rights. An explicit reference to core labour standards could allow action where a WTO member state is found to be in breach of ILO standards. Opponents argue that such an approach could backfire and undermine labour rights, as a country's industries, and therefore its workforce, are necessarily harmed but without any guarantee that labour reform would take place. Furthermore it was argued in the Singapore Ministerial Declaration 1996 that "the comparative advantage of countries, particularly low-age developing countries, must in no way be put into question."[344] On this view, countries ought to be able to take advantage of low wages and poor conditions at work as a comparative advantage in order to boost their exports. It is disputed that business will relocate production to low wage countries from higher wage countries such as the UK, because that choice is said to depend on productivity of workers. However, the view of many labour lawyers and economists remains that more trade, when workers have weaker bargaining power and less mobility, still allows business to opportunistically take advantage of workers by moving production, and that a coordinated multilateral approach with targeted measures against specific exports is preferable.[345] While the WTO has yet to incorporate labour rights into its procedures for dispute settlements, many countries began to make bilateral agreements that protected core labour standards instead.[346] Moreover, in domestic tariff regulations not yet touched by the WTO agreements, countries have given preference to other countries who do respect core labour rights, for example under the EU Tariff Preference Regulation, articles 7 and 8.[347]

While the debate over labour standards applied by the ILO and the WTO seeks to balance standards with free movement of capital globally, conflicts of laws (or private international law) issues arise where workers move from home to go abroad. If a worker from the UK performs part of her job in other countries (a "peripatetic" worker) or if a worker is engaged in the UK to work as an expatriate abroad, an employer may seek to characterise the contract of employment as being governed by other countries' laws, where labour rights may be less favourable than at home. In Lawson v Serco Ltd[348] three joined appeals went to the House of Lords. Mr Lawson worked for a multinational business on Ascension Island, a British territory as a security guard. Mr Botham worked in Germany for the Ministry of Defence. Mr Crofts, and his copilots, worked mostly in the air for a Hong Kong airline, though his contract stated he was based at Heathrow. All sought to claim unfair dismissal, but their employers argued they should not be covered by the territorial reach of the Employment Rights Act 1996. Lord Hoffmann held that, first, if workers are in Great Britain, they are covered. Second, peripatetic workers like Mr Crofts would be covered if they are ordinarily working in the UK, but that this could take account of the company's basings policy. Third, if workers were expatriate the general rule was they would not be covered, but that exceptionally if there was a "close connection" between the work and the UK they would be covered. This meant that Lawson and Botham would have claims, because both Lawson and Botham's position was in a British enclave, which made a close enough connection. Subsequent cases have emphasised that the categories of expatriate worker who will exceptionally be covered are not closed. So in Duncombe v Secretary of State for Children, Schools and Families[349] an employee of the UK government teaching in EU schools could claim unfair dismissal because their employer held their connection close to the UK. Then, in Ravat v Halliburton Manufacturing and Services Ltd[350] an employee in Libya, working for a German company that was part of the American multinational oil conglomerate Halliburton, was still covered by UK unfair dismissal rights because he was given an assurance that his contract would come under UK law. This established a close connection. The result is that access to mandatory employment rights mirrors the framework for contractual claims under the EU Rome I Regulation article 8.[351] It is also necessary that a UK court has jurisdiction to hear a claim, which under the Brussels I Regulation article 19,[352] requires the worker habitually works in the UK, or was engaged there. Both EU Regulations emphasise that the rules should be applied with the purpose of protecting the worker.[353]

As well as having legal protection for workers rights, an objective of trade unions has been to organise their members across borders in the same way that multinational corporations have organised their production globally. In order to meet the balance of power that comes from ability of businesses to dismiss workers or relocate, unions have sought to take collective action and strike internationally. However, this kind of coordination was halted in the European Union in two decisions. In Laval Ltd v Swedish Builders Union[354] a group of Latvian workers were sent to a construction site in Sweden on low pay. The local Swedish Union took industrial action to make Laval Ltd sign up to the local collective agreement. Under the Posted Workers Directive, article 3 lays down minimum standards for workers being posted away from home so that workers always receive at least the minimum rights that they would have at home in case their place of work has lower minimum rights. Article 3(7) goes on to say that this "shall not prevent application of terms and conditions of employment which are more favourable to workers". Most people thought this meant that more favourable conditions could be given than the minimum (e.g. in Latvian law) by the host state's legislation or a collective agreement. However, in an interpretation seen as astonishing by many, the ECJ said that only the posting state could raise standards beyond its minimum for posted workers, and any attempt by the host state, or a collective agreement (unless the collective agreement is declared universal under article 3(8)) would be an infringement of the business' freedom to provide services under TFEU article 56. This decision was implicitly reversed by the European Union legislature in the Rome I Regulation, which makes clear in recital 34 that the host state may allow more favourable standards. However, in The Rosella, the ECJ also held that a blockade by the International Transport Workers Federation against a business that was using an Estonian flag of convenience (i.e. saying it was operating under Estonian law to avoid labour standards of Finland) infringed the business' right of free establishment under TFEU article 49. The ECJ said that it recognised the workers' "right to strike" in accordance with ILO Convention 87, but said that its use must be proportionately to the right of the business' establishment. The result is that the European Court of Justice's recent decisions create a significant imbalance between the international freedom of business, and that of labour, to bargain and take action to defend their interests. For this reason it has been questioned whether the ECJ's decisions were compatible with fundamental human rights, particularly the freedom of association guaranteed by article 11 of the European Convention on Human Rights.

See also[edit]

Notes[edit]

  1. ^ See Office for National Statistics, 'Statistical Bulletin: Labour Market Statistics' (September 2012) 1.
  2. ^ Northern Ireland has specific legislation and is excluded from two primary statutes, the ERA 1996 s 244 and TULRCA 1992 s 301, but has mostly analogous provisions and falls under most of the other Acts and Regulations.
  3. ^ See KW Wedderburn, The Worker and the Law (3rd edn Harmondsworth 1986) 6, referring to a "floor of rights", and Gisda Cyf v Barratt [2010] UKSC 41, [37]
  4. ^ https://www.gov.uk/national-minimum-wage-rates
  5. ^ Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and Agency Workers Regulations 2010
  6. ^ ERA 1996 ss 86, 94 and 135. The qualification period is one month two have one week's notice, and after two years, employees must have at least two week's notice, a fair reason and redundancy pay. The minimum level of notice and redundancy pay increases each year of employment.
  7. ^ See Autoclenz Ltd v Belcher [2011] UKSC 41, [35]
  8. ^ See the Further and Higher Education Act 1992 ss 20(2) and 85, and Sch 4, para 3
  9. ^ See the Information and Consultation of Employees Regulations 2004
  10. ^ See the Companies Act 2006
  11. ^ (1772) 20 State Tr 1
  12. ^ However, it was not until the Criminal Justice Act 1948 that penal servitude, forced labour for prisoners, was abolished.
  13. ^ See Henry James Sumner Maine, Ancient Law (1861)
  14. ^ See also, the Royal Commission on Trade Unions (1867) Cmnd ???; Employers and Workmen Act 1875.
  15. ^ [1892] AC 25
  16. ^ [1901] AC 426
  17. ^ Versailles Treaty, Part XIII
  18. ^ Versailles Treaty 1919, Part XIII and Art 427
  19. ^ The Whitley Report was published by the Ministry of Reconstruction, see Committee on Relations between Employers and Employed, Final Report (1918) Cmnd 9153; see also, Whitley Committee, Interim Report on Joint Standing Industrial Councils (1917) Cmnd 8606
  20. ^ See KD Ewing, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1.
  21. ^ S Webb and B Webb, Industrial Democracy (Longmans 1902)
  22. ^ See Constantine v Imperial Hotels Ltd [1944] KB 693.
  23. ^ See Nairn v The University Court of the University of St Andrews (1907) 15 SLT 471, 473, per Lord McLaren, it was "a principle of the unwritten constitutional law of this country that men only were entitled to take part in the election of representatives to Parliament."
  24. ^ See the Race Relations Act 1965, RRA 1968 and RRA 1976; Charter v Race Relations Board [1973] AC 868, 889, Lord Morris says "a new guiding principle of fundamental and far-reaching importance... In the terms decreed by Parliament, but subject to the exceptions permitted by Parliament, discrimination against a person of colour, race or ethnic or national origins has become unlawful by the law of England."
  25. ^ See the Equal Pay Act 1970, the Sex Discrimination Act 1975, Disability Discrimination Act 1995, Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Age) Regulations 2006.
  26. ^ With the notable exception of the leading case, Defrenne v Sabena (No 2) [1976] ECR 455 (C-43/75)
  27. ^ See also Redundancy Payments Act 1965 and the Employment Protection (Consolidation) Act 1978.
  28. ^ Alan Bullock, Report of the committee of inquiry on industrial democracy (1977) Cmnd 6706
  29. ^ Employment Act 1980 (trade union right to government funds for ballots, narrowed picketting immunity, reduced secondary action immunity, unions right to expel members limited), Employment Act 1982 (narrowed "trade dispute" definition), Trade Union Act 1984 (secret ballots for union elections and strikes), Public Order Act 1986 (set out offences related to picketing, and increased police power over groups of over 20 people), Wages Act 1986 (deregulated restrictions on employers fining and deducting money from employees' pay, removed statutory holiday entitlement, reduced state funding for redundancies), Employment Act 1988 (worker's right to not join a union, trade union member's right to challenge strike ballots), Employment Act 1989 (restricted trade union officials' time off for duties, abolished the Training Commission, abolished government support for redundancy payments), Employment Act 1990 (removing closed shop and secondary action protection), TULRCA 1992 (consolidated legislation hitherto), Trade Union Reform and Employment Rights Act 1993 (trade union duty to inform employers of upcoming strikes)
  30. ^ Gisda Cyf v Barratt [2010] UKSC 41
  31. ^ Gisda Cyf v Barratt [2010] UKSC 41
  32. ^ https://www.gov.uk/national-minimum-wage-rates
  33. ^ NMWA 1998 s 54; WTR 1998 rr 13-14; PA 2008 s 3; Equality Act 2010
  34. ^ HSAWA 1975 s 2; ERA 1996 ss 1, 71-80I, 86, 94 and 135; SSCBA 1992 ss 1-2
  35. ^ See particularly ERA 1996 s 230
  36. ^ Malik v BCCI SA
  37. ^ Lawrie-Blum v Land Baden-Württemberg (1986) Case 66/85, [1986] ECR 2121; Steymann v Staatssecretaris van Justitie (1988) Case 196/87, [1988] ECR 6159; Pfeiffer v Deutsches Kreuz, Kreisverband Waldshut eV (2005) C-397/01, [2005] IRLR 137
  38. ^ See S Webb and B Webb, Industrial Democracy (1897) and O Kahn-Freund, Labour and the Law (Hamlyn Lectures 1972)
  39. ^ ERA 1999 s 23
  40. ^ Yewens v Noakes (1880) 6 QBD 530; R v Negus (1873) LR 2 CP 34
  41. ^ See National Insurance Act 1946 s 1(2)
  42. ^ Cassidy v Minister of Health [1951] 2 KB 343, Stevenson, Jordan & Harrison v MacDonald v Evans [1952] 1 TLR 101, Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248, 295, Denning LJ, ‘It depends on whether the person is part and parcel of the organisation.’
  43. ^ ’’Montreal v Montreal Locomotive Works’’ [1947] 1 DLR 161, 169, per Lord Wright, and Ready Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance [1968] 2 QB 497, 515, per MacKenna J
  44. ^ Nethermere (St Neots) Ltd v Gardiner [1984] IRLR 240, Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 217
  45. ^ O’Kelly v Trusthouse Forte plc [1983] ICR 730, [1983] IRLR 369 and James v Greenwich LBC. This appeared to derive from M Freedland, The Contract of Employment (1976) 21-22 and first used in Airfix Footwear Ltd v Cope [1978] ICR 1210
  46. ^ Following Johnson v Unisys Ltd [2001] IRLR 279, [20] Lord Steyn, ‘It is no longer right to equate a contract of employment with commercial contracts. One possible way of describing a contract of employment in modern terms is as a relational contract.’
  47. ^ Autoclenz Ltd v Belcher [2011] UKSC 41, [35]
  48. ^ cf Massey v Crown Life Insurance Company [1977] EWCA Civ 12
  49. ^ [2010] UKSC 41, [39]
  50. ^ ERA 1996 s 1
  51. ^ e.g. French v Barclays Bank plc [1998] IRLR 646
  52. ^ Harlow v Artemis International Corp Ltd [2008] EWHC 1126 (QB), [2008] IRLR 629
  53. ^ TULRCA 1992 s 179
  54. ^ Contrast Alexander and Wall v Standard Telephones & Cables Ltd (No 2) [1991] IRLR 287 and Kaur v MG Rover Group Ltd [2004] EWCA 1507
  55. ^ See Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10
  56. ^ Wilsons and Clyde Coal Ltd v English [1938] AC 57 and Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293
  57. ^ Devonald v Rosser & Sons [1906] 2 KB 728
  58. ^ Scally v Southern Health and Social Services Board [1992] 1 AC 294
  59. ^ Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293
  60. ^ Wilson v Racher [1974] ICR 428
  61. ^ The Post Office v Roberts [1980] IRLR 347
  62. ^ Transco plc v O’Brien [2002] EWCA Civ 379
  63. ^ Mahmud and Malik v Bank of Credit and Commerce International SA [1998] AC 20
  64. ^ Mallone v BPB Industries plc [2002] EWCA Civ 126
  65. ^ Contrast Lord Steyn in Mahmud and Malik v Bank of Credit and Commerce International SA [1998] AC 20 and Lord Browne-Wilkinson VC in Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293
  66. ^ e.g. Cresswell v Board of Inland Revenue [1984] ICR 508
  67. ^ Rigby v Ferodo Ltd [1988] ICR 29
  68. ^ Robertson v British Gas Corp [1983] ICR 351
  69. ^ e.g. Bateman v Asda Stores Ltd [2010] IRLR 370
  70. ^ Wandsworth London Borough Council v D’Silva [1998] IRLR 193
  71. ^ Paul Harpur and Philip James, ‘The Shift in Regulatory focus from Employment to Work Relationships: Critiquing Reforms to Australian and UK Occupational Safety and Health Laws’ (2014) 36 Comparative Labor Law and Policy Journal 1.
  72. ^ Factories Act 1961
  73. ^ Health and Safety Directive 89/391/EEC
  74. ^ See Franklin v South Eastern Railway (1858) 3 H&N 211 and Fatal Accidents Act 1976
  75. ^ See Turberville v Stampe (1697) 91 ER 1072 and Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215
  76. ^ See Morris v Ford Motor Co Ltd [1973] QB 792, 799 and Williams v Natural Life Health Foods Ltd [1998] UKHL 17
  77. ^ e.g. Priestly v Fowler (1837) 3 Mees & Wels 1
  78. ^ [1938] AC 57
  79. ^ e.g. Woodley v Metropolitan District Railway Co (1877) 2 Ex D 384, overturned in Smith v Baker [1891] AC 325 and Bowater v Mayor, Aldermen and Burgesses of the Borough of Rowley Regis [1944] KB 476
  80. ^ [1965] AC 656
  81. ^ See Law Reform (Contributory Negligence) Act 1945 s 1
  82. ^ [2002] EWCA Civ 1821
  83. ^ [2002] UKHL 22. See also McGhee v National Coal Board [1972] 3 All ER 1008
  84. ^ [2006] UKHL 20
  85. ^ [2011] EWHC 951 (QB)
  86. ^ There are also proposals circulating moving towards setting principles resembling a "maximum wage", see Financial Services Authority pay code
  87. ^ Following the Peasants' Revolt, the Statute of Labourers fixed wages for the benefit of employers and feudal landlords.
  88. ^ ERA 1996 s 14
  89. ^ Miles v Wakefield Metropolitan District Council [1987] AC 539. See also, Wiluszynski v London Borough of Tower Hamlets [1989] ICR 439
  90. ^ See also S Webb, ‘The Economic Theory of a Legal Minimum Wage’ (1912) 20(10) The Journal of Political Economy 973-998
  91. ^ See Trade Union Reform and Employment Relations Act 1993
  92. ^ e.g. DE Card and AB Krueger, Myth and Measurement: The New Economics of the Minimum Wage (1995) and S Machin and A Manning, ‘Minimum wages and economic outcomes in Europe’ (1997) 41 European Economic Review 733
  93. ^ See Universal Declaration of Human Rights art 23(3), European Social Charter 1961 art 4, ILO Minimum Wage Fixing Convention, No 131 (1970), European Community Charter of Fundamental Social Rights 1989 art 5
  94. ^ See NMWA 1998 s 54(3), ERA 1996 s 230 and James v Redcats (Brands) Ltd [2007] IRLR 296 (EAT). NMWA 1998 s 34 expressly including agency workers, though NMWR 1999 r 12, excludes au pairs and family members in family business and r 26 allows adults in the first 26 weeks of accredited training can be paid at a lower rate.
  95. ^ [2000] QB 501
  96. ^ Press Association, 'Minimum wage to rise by 15p' (7 April 2011) The Guardian
  97. ^ SI 1999/584
  98. ^ NMWR 1999 r 10
  99. ^ See Scottbridge Construction Ltd v Wright [2002] ScotCS 285, but then NMWR 1999 r 15(1A) says that a worker given suitable sleeping facilities is not doing work when not awake for the purpose of working
  100. ^ McCartney v Oversley House Management [2006] IRLR 514 (EAT)
  101. ^ [2003] EWCA Civ 199, [2003] IRLR 469
  102. ^ See NMWR 1999 rr 31 and 36 and Leisure Employment Services Ltd v HM Revenue & Customs [2007] EWCA Civ 92, [2007] ICR 1056. SI 2009/1902 r 5 removed an exception for tips paid through the payroll previously found in NMWR 1999 r 31.
  103. ^ NMWA 1998 ss 17-18
  104. ^ NMWA 1998 ss 10 and 23-25
  105. ^ NMWA 1998 ss 14, 19 and 20. See also the Employment Act 2008
  106. ^ NMWA 1998 ss 11 and 21
  107. ^ 2003/88/EC, replacing 93/104/EC
  108. ^ See Universal Declaration of Human Rights art 24, ‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.’ Also, ILO Holidays with Pay Convention (Revised), 1970 C132
  109. ^ WTD 2003 art 7 and WTR 1998 rr 13-16. SI 2007/2079 r 2 updated the period to 28 days, expressed often as 5.6 weeks, if one takes "week" to mean a five day working week.
  110. ^ See R (BECTU) v DTI (2001) C-173/99, [2001] 3 CMLR 7, ruling that the UK's initial 13 week qualifying period was 'manifestly incompatible' with the Directive.
  111. ^ Accordingly the WTD 2003 was passed under the authority of TFEU art 153(1)(a)
  112. ^ See Caulfield v Marshalls Clay Products (2006) C-131/04, [2006] IRLR 386. It is also the case that a worker who is off work for a long term illness is still entitled to holiday pay, Stringer v HMRC and Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] UKHL 31, [2009] IRLR 214, also, C-520/06 and C-350/06
  113. ^ WTD 2003 arts 8-13 and WTR 1998 rr 2-7
  114. ^ Commission v United Kingdom (2006) C-484/04, [2006] IRLR 888 held the employer is under an obligation to ensure the breaks are actually observed.
  115. ^ (2005) C-397/01, [2005] IRLR 137, referring to workers being the "weaker party" to a contract.
  116. ^ WTD 2003 art 22, WTR 1998 rr 4-5
  117. ^ See Fuß v Stadt Halle [2010] IRLR 1080, reducing pay after requesting to move to reduced hours is victimisation.
  118. ^ WTR 1998 r 4(3)(b)
  119. ^ See SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (2000) C-303/98, [2000] ECR I-7963
  120. ^ (2003) C-151/02, [2003] ECR I-08389
  121. ^ Social Security Contributions and Benefits Act 1992 s 167
  122. ^ The right was secured in collective agreements, and then put into legislation for the first time by the Employment Protection Act 1975 ss 34-52. Better rights only came after 1999.
  123. ^ cf ACL Davies, Perspectives on Labour Law (2004) 111, minimal paternity leave has the ‘unfortunate side-effect of stereotyping women and perpetuating the view that childcare is their responsibility alone’.
  124. ^ 92/85/EEC
  125. ^ MPLR 1999 (SI 1999/3312) reg 8
  126. ^ Boyle v Equal Opportunities Commission (1998) C-411/96, [1998] ECR I-6401, requires this to be at least the same level as statutory sick pay.
  127. ^ Social Security Contributions and Benefits Act 1992 s 167
  128. ^ ERA 1996 ss 72-73 and MPLR 1999 regs 7-8
  129. ^ Work and Families Act 2006 (c 18) abolished the qualification period for ordinary and additional maternity leave.
  130. ^ MPLR 1999 regs 17-20
  131. ^ ERA 1996 ss 75A-D and PALR 2002 regs 15-20
  132. ^ PALR 2002 SI 2002/2788 reg 6. ERA 1996 ss 80A-E. See also Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (SI 2002/2822)
  133. ^ Following the Parental Leave Directive 2010/18/EU, replacing 96/34/EC
  134. ^ ERA 1996 ss 76-80 and MPLR 1999 regs 13-15
  135. ^ MPLR 1999 reg 16 and Sch 2
  136. ^ MPLR 1999 reg 17-20
  137. ^ APLR 2010 (SI 2010/1055)
  138. ^ See 'Gender Equality in Sweden' on sweden.se
  139. ^ [2003] IRLR 184 (EAT)
  140. ^ ERA 1996 s 80H
  141. ^ [2006] IRLR 171 (EAT)
  142. ^ See Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 r 7 (SI 2002/3236)
  143. ^ Inserted by the Apprenticeships, Skills, Children and Learning Act 2009 s 40
  144. ^ See Pension Schemes Act 1993 s 1 and the Social Security Contributions and Benefits Act 1992
  145. ^ Pensions Act 2008 ss 1, 13 and 88(3)
  146. ^ PA 2008 ss 3 and 16
  147. ^ See PA 2008 Sch 1
  148. ^ See I Adams, ‘Fewer than half of Britons save for pension, says survey’ (3 April 2010) The Guardian, 35
  149. ^ D Hayton, ‘Pension Trusts and Traditional Trusts: Drastically Different Species of Trusts’ [2005] Conveyancer 229
  150. ^ Imperial Group Pension Trust v Imperial Tobacco Ltd [1991] 1 WLR 589
  151. ^ Scally v Southern Health and Social Services Board [1992] 1 AC 294
  152. ^ Bilka-Kaufhaus GmbH v Weber von Hartz (1986) C-170/84, [1986] IRLR 317; Barber v Guardian Royal Exchange Assurance Group (1990) C-262/88, [1990] IRLR 240
  153. ^ PA 2004 ss 241-242. Nomination can be through a direct vote or trade union appointment. This recommendation in law began with the Goode Report, Pension Law Reform (1993) Cm 2342
  154. ^ PA 2004 s 243
  155. ^ See Harries v The Church Commissioners for England [1992] 1 WLR 1241
  156. ^ See Pensions Act 2008 and Pensions Act 2004 ss 241-243
  157. ^ Goode Report, Pension Law Reform (1993) Cm 2342
  158. ^ IA 1986 ss 175, 386 and Sch 6
  159. ^ On the scope of regulation, see Houldsworth v Bridge Trustees Ltd [2011] UKSC 42
  160. ^ Pensions Act 2004 ss 13-32
  161. ^ Pensions Act 1995 s 33
  162. ^ [2013] UKSC 52
  163. ^ Pension Schemes Act 1993, s 163
  164. ^ Pensions Act 2004 ss 173-174 and Sch 7
  165. ^ cf TULRCA 1992 s 1
  166. ^ ERA 1996 ss 98 and 135
  167. ^ TULRCA 1992 s 219
  168. ^ See Equitable Life Assurance Society v Hyman [2000] UKHL 39 and AG of Belize v Belize Telecom Ltd [2009] UKPC 10
  169. ^ AB v CD [2001] IRLR 808. See also, Breen v Amalgamated Engineering Union [1971] 2 QB 175, where the dissenting judgment of Lord Denning MR is probably an accurate reflection of the law after Hyman and Belize
  170. ^ See Foss v Harbottle (1843) 67 ER 189
  171. ^ [1950] 2 All ER 1064
  172. ^ E McGaughey, 'British Codetermination and the Churchillian Circle' (2014) UCL Labour Rights Institute On-Line Working Papers – LRI WP 2/2014
  173. ^ See the South Metropolitan Gas Act 1896 s 19, Port of London Act 1908 s 1(7), Iron and Steel Act 1967, Sch 4, Part V, Aircraft and Shipbuilding Industries Act 1977 s 2(8), Post Office Act 1977 s 1
  174. ^ Further and Higher Education Act 1992, ss 20(2) and 85, and Sch 4, para 4
  175. ^ See M Weiss (ed) et al., Handbook on employee involvement in Europe (Kluwer 2004). For the most developed example, see in German labour law the Mitbestimmungsgesetz 1976 and the Betriebsverfassungsgesetz 1972 §87. Member states with no participation rights are Belgium, Cyprus, Estonia, Italy, Latvia, Lithuania, Romania and the United Kingdom.
  176. ^ See Employee Involvement Directive 2001/86/EC
  177. ^ See generally, PL Davies, 'Workers on the Board of the European Company?' (2003) 32(2) Industrial Law Journal 75
  178. ^ (1977) Cmnd 6706; see also Lord Donovan, Report of the Royal Commission on Trade Unions and Employers’ Associations (1965–1968) Cmnd 3623, §§997-1006, where the minority favoured worker directors in principle.
  179. ^ See KW Wedderburn, 'Employees, Partnership and Company Law' [2002] 31(2) Industrial Law Journal 99, a minor duty that could not be legally enforced was CA 1985 s 309, requiring directors to act in shareholders and employees' interests, now reflected in CA 2006 s 172
  180. ^ Growth and Infrastructure Act 2013 s 31, and PJ Purcell, ‘The Enron Bankruptcy and Employer Stock in Retirement Plans’ (11 March 2002) CRS Report for Congress
  181. ^ See Information and Consultation of Employees Regulations 2004 (SI 3426/2004), implementing EU Directive 2002/14/EC
  182. ^ RMT v UK [2014] ECHR 366
  183. ^ B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441
  184. ^ [1892] AC 25
  185. ^ [1942] AC 435
  186. ^ See also Morgan v Fry [1968] 2 QB 710, Lord Denning MR says there has been a right to strike in the UK for over 60 years provided proper notice is given. See also London Underground Ltd v RMT [1996] ICR 170, 181, per Millett LJ
  187. ^ [1901] UKHL 1, [1901] AC 426
  188. ^ See also South Wales Miners' Federation v Glamorgan Coal Co [1905] AC 239
  189. ^ [1964] UKHL 1, [1964] AC 1129
  190. ^ See also Metrobus Ltd v Unite [2009] EWCA Civ 2009
  191. ^ e.g. R v Mawbey (1796) 6 Term Rep 619, 101 ER 736, cf Timeplan Education Group Ltd v NUT [1997] IRLR 457
  192. ^ Lumley v Gye (1853) 2 E&B 216
  193. ^ Tarleton v McGawley (1793) 1 Peake 270, 170 ER 153
  194. ^ Parliament had presumed a general right to take collective action in pursuit of economic interests (including enforcement of the closed shop and solidarity action) since the Trade Union Act 1871. However because of the Taff Vale case it became necessary for Parliament to clarify the position in the Trade Disputes Act 1906. This, and subsequent legislation, did not however enact a positive right to strike, meaning common law courts could develop new heads that existing immunity did not cover.
  195. ^ This was introduced by the Conspiracy and Protection of Property Act 1875
  196. ^ Constantine v Imperial Hotels Ltd [1944] KB 693
  197. ^ Mangold v Helm (2005) C-144/04
  198. ^ See Race Equality Directive 2000/48/EC, for race; Employment Equality Framework Directive 2000/78/EC, for religion, belief, sexuality, disability and age; Equal Treatment Directive 2006/54/EC, for gender.
  199. ^ TULRCA 1992 ss 146-166; ECHR art 11 and Wilson v United Kingdom [2002] ECHR 552
  200. ^ EA 2010 ss 4-14, 16, 18
  201. ^ PTWR 2000, FTER 2002, AWR 2010
  202. ^ Contrast the unfair dismissal rules, which set out the legitimate grounds for dismissal, and the European Convention art 13, which catches 'any other status'
  203. ^ e.g. Transco plc v O’Brien [2002] EWCA Civ 379, cf Mandla v Dowell Lee [1983] QB 1, per Lord Denning MR (overturned on appeal).
  204. ^ The exception is that direct age discrimination may always be objectively justified, as with discrimination against part-time, fixed term or agency workers.
  205. ^ EA 2010 s 13
  206. ^ See James v Eastleigh BC [1990] 2 AC 751
  207. ^ R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 WLR 1
  208. ^ [2003] UKHL 11, [2003] ICR 337
  209. ^ See also, Ladele v London Borough of Islington [2009] EWCA Civ 1357, [39]
  210. ^ Equal Treatment Directive 2000/78/EC art 10; Igen Ltd v Wong [2005] ICR 931; Madarassy v Nomura International Plc [2007] EWCA Civ 33, [2007] ICR 867
  211. ^ (2008) C-303/06, [2008] IRLR 722
  212. ^ [2008] EWCA Civ 1421
  213. ^ See Showboat Entertainment Centre v Owens [1984] ICR 65, (EAT)
  214. ^ EA 2010 s 19
  215. ^ Ladele v Islington BC [2009] EWCA Civ 1357, [60], per Lord Neuberger MR
  216. ^ Eweida v British Airways plc [2010] EWCA Civ 80, [37], per Sedley LJ.
  217. ^ (1986) C-170/84, [1986] ECR 1607
  218. ^ (1999) C-167/97, [2000] UKHL 12
  219. ^ 2006/54/EC
  220. ^ EA 2010 ss 70-71 exclude the application of ss 39, 49-50, but not for direct discrimination in ss 13-14
  221. ^ See now the Equal Pay Directive 2006/54/EC. In the US, the Equal Pay Act 1963 preceded the Civil Rights Act 1964 by amending the Fair Labor Standards Act of 1938.
  222. ^ See Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH & Co KG [1989] ECR 2743 (C-171/88)
  223. ^ See Defrenne v Sabena (No 2) [1976] ECR 455 (C-43/75)
  224. ^ See further S Deakin and G Morris, Labour Law (6th edn 2012) 696-7
  225. ^ cf Burton v De Vere Hotels Ltd [1997] ICR 1, which is now effectively overturned by EA 2010 s 40(2) and (3)
  226. ^ [2006] UKHL 34, [2006] ICR 1199
  227. ^ [2007] UKHL 16, [2007] ICR 841
  228. ^ [2001] ICR 1065
  229. ^ See also, Equality Framework Directive 2000/78/EC art 4
  230. ^ [1989] IRLR 150
  231. ^ (2010) C-229/08
  232. ^ Contrast the stricter approach to policing, Johnston v Chief Constable of the Royal Ulster Constabulary (1986) C-222/84, [1986] 5 ECR 1651
  233. ^ (1999) C-273/97, [1999] ECR I-7403
  234. ^ Contrast the ECJ's rejection of the complete ban on non-interoperable forces in Kreil v Germany (2000) C-285/98, [2000] ECR I-0069
  235. ^ R (Amicus) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin), [2004] IRLR 430
  236. ^ cf Griggs v Duke Power Co, 401 US 424 (1971) which was the founding case under the US Civil Rights Act 1964.
  237. ^ Bilka-Kaufhaus GmbH v Weber von Hartz (1984) C-170/84, [1986] ECR 1607, concerning a part-time worker who was refused an occupational pension.
  238. ^ Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH & Co KG (1989) C-171/88, [1989] ECR 2743, concerning a part-time worker who did not get sick pay. Nimz v Freie und Hansestadt Hamburg (1991) C-184/89, [1991] ECR I-297, concerning a women part-time worker who was paid less than full-time staff. Cf Handels-og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (1989) C-109/88, [1989] ECR 3199, where criteria of being adaptable, prior training and seniority in practice meant that women were being paid less. Seniority was explicitly approved as a good reason.
  239. ^ Kutz-Bauer v Freie und Hansestadt Hamburg (2003) C-187/00, [2003] ECR I-02741, involving a German law subsidising employment for men up to 65, and women only up to 60. Cf Allonby v Accrington and Rossendale College (2001) C-256/01, [2001] ICR 1189.
  240. ^ [1978] 1 WLR 1429, [1978] IRLR 361
  241. ^ [1987] IRLR 26
  242. ^ cf Allonby
  243. ^ (1992) C-127/92
  244. ^ [1998] 1 WLR 259
  245. ^ Redcar and Cleveland BC v Bainbridge [2007] EWCA Civ 929, [2008] ICR 238
  246. ^ Allen v GMB [2008] EWCA Civ 810, [2008] IRLR 690
  247. ^ R (Carson and Reynolds) v Secretary of State for Work and Pensions [2005] UKHL 37, holding that the UK government could give less money in income support and jobseekers allowance for under 25s than over 25s. This may be of questionable compatibility with Kutz-Bauer and Kücükdeveci v Swedex GmbH & Co KG (2010) C-555/07, [2010] IRLR 346.
  248. ^ Palacios de la Villa v Cortefiel Servicios SA (2007) C-411/05, [2007] IRLR 989 and R (Age Concern (England)) v Secretary of State for Business Enterprise and Regulatory Reform (2009) C-388/07, [2009] IRLR 373
  249. ^ (2006) C-13/05, [2006] IRLR 706
  250. ^ Equality Act 2010 (Disability) Regulations 2010 regs 3-8 list various exclusions, such as nicotine or alcohol addiction, or a propensity to start fires.
  251. ^ [2004] UKHL 32
  252. ^ [2007] EWCA Civ 283
  253. ^ See United Steelworkers of America v Weber, 443 US 193 (1979) and the SA Employment Equity Act 1998 s 15 and Sch 4, for large employers.
  254. ^ cf Kalanke v Freie Hansestadt Bremen (1995) C-450/93, [1995] IRLR 660, said in Marschall to have been a case where the employer failed to pay regard to individual qualities, by having an automatic promotion policy for women if equally qualified with male competitors.
  255. ^ (1996) C-409/95, [1996] ICR 45
  256. ^ (2000) C-407/98, [2000] ECR I-05539
  257. ^ (2000) C-158/97, [2001] 2 CMLR 6
  258. ^ Part-time Work Directive 97/81/EC, Fixed-Term Work Directive 99/70/EC, and the Temporary and Agency Work Directive 2008/104/EC
  259. ^ SI 2000/1551
  260. ^ [2006] UKHL 8
  261. ^ See A McColgan, ‘Missing The Point?’ (2000) 29 ILJ 260, 267
  262. ^ SI 2002/2034
  263. ^ See A McColgan, 'The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002: Fiddling While Rome Burns?' [2003] 32 ILJ 194
  264. ^ Mangold v Helm (2005) C-144/04
  265. ^ FTER 2002 regs 3-5
  266. ^ See Adeneler v Ellinikos Organismos Galaktos [2006] IRLR 716 (C-212/04) on objective justification for use of fixed-term contracts disclosing a genuine need, and measures employed are proportionate to that aim, and twenty days is too little to break continuity.
  267. ^ See ERA 1996 s 235 and Ford v Warwickshire CC [1983] ICR 273
  268. ^ e.g. Transco plc v O’Brien [2002] EWCA Civ 379
  269. ^ See E McGaughey, 'Should Agency Workers be Treated Differently?' (2010) LSE Legal Studies Working Paper No. 7/2010 and N Countouris, 'The Temporary Agency Work Directive: Another Broken Promise?' [2009] 38(3) ILJ 329
  270. ^ [2011] UKSC 41
  271. ^ cf Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 21 and James v Greenwich LBC [2008] EWCA Civ 35
  272. ^ SI 2003/3319
  273. ^ ILO Convention 158 (1982)
  274. ^ See the Collective Redundancies Directive 98/59/EC and TULRCA 1992 ss 188-192
  275. ^ Gisda Cyf v Barratt [2010] UKSC 41. See also Locke v Candy & Candy Ltd [2010] EWCA Civ 1350and McClelland v Northern Ireland General Health Services [1957] 1 WLR 594, where the House of Lords by 3 to 2 held that even though a contract had an express provision that women had to resign if they got married, read in the "context" of another provision on gross inefficiency it could not apply.
  276. ^ (1875-76) LR 1 CPD 591. See also Payzu Ltd v Hannaford [1918] 2 KB 348. Power and Savage v British India Steam Navigation Co Ltd (1930) 36 Lloyds Law Reports 205
  277. ^ Nokes v Doncaster Collieries Ltd [1940] AC 1014
  278. ^ Gunton v Richmond-Upon Thames LBC [1980] ICR 755
  279. ^ See also Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698, holding that an employee's failure to obey an employer's instruction was a breach of contract, but not one serious enough to justify termination without notice.
  280. ^ [1974] ICR 428
  281. ^ Contrast Jones v Gwent County Council [1992] IRLR 521, Hill v CA Parsons & Co Ltd [1972] Ch 305, Irani v Southampton and South West Hampshire HA [1985] ICR 590 and Mezey v South West London & St George's Mental Health NHS Trust [2010] IRLR 512
  282. ^ [2003] 1 AC 518
  283. ^ [2004] UKHL 35, [2004] IRLR 732
  284. ^ Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571, where failure to follow contractual disciplinary procedure led to a surgeon losing his career.
  285. ^ Cf Reda v Flag Ltd [2002] UKPC 38, [2002] IRLR 747, stating that an express term for without cause removal cannot be overridden by an implied term of good faith, thus suggesting a default common law rule would require a good reason for removal.
  286. ^ Ridge v Baldwin [1964] AC 40. See also Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1581, where Lord Reid repeated: ‘At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.’ This echoes Addis v Gramophone Co Ltd [1909] UKHL 1, [1909] AC 488.
  287. ^ See Report of the Royal Commission on Trade Unions and Employers’ Associations (1968) Cmnd 3623
  288. ^ ERA 1996 s 108. Under ERA 1996 s 212, a break in employment for a number of weeks, or even a summer does not restart the clock for the 1 year qualifying period, see Ford v Warwickshire CC [1983] ICR 273. Also, under ERA 1996 s 97, if an employer dismisses an employee one week before a year is up without proper notice, the "effective date of termination" will still be after the one year period and so the employee will still qualify for unfair dismissal rights.
  289. ^ [1992] ICR 183
  290. ^ [1978] ICR 221
  291. ^ See also Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693
  292. ^ [1986] ICR 414
  293. ^ See H Collins et al., Labour Law: Cases and Materials (Hart 2005) 492
  294. ^ Wilson v United Kingdom [2002] ECHR 552
  295. ^ See Abernethy v Mott, Hay and Anderson [1974] ICR 323, [1974] IRLR 213 and Smith v Glasgow City District Council [1987] ICR 796, on the consequences of an employer failing to identify a legitimate reason for dismissal.
  296. ^ See Iceland Frozen Foods Ltd v Jones [1983] ICR 17, per Browne-Wilkinson J
  297. ^ cf Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 in English tort law.
  298. ^ [2000] ICR 1283
  299. ^ cf Haddon v Van Den Bergh Foods Ltd [1999] ICR 1150, where the outgoing President of the Employment Appeal Tribunal, Morison J, held the band of responses test was like a perversity test, and a full reasonableness test was the law.
  300. ^ [2011] EWCA Civ 63
  301. ^ West Midlands Co-op v Tipton [1986] AC 536, [1986] ICR 192
  302. ^ [1988] ICR 142
  303. ^ For an example of the operation of EA 2002, which if not followed let to an automatic finding of unfair dismissal, see Cartwright v King’s College, London [2010] EWCA Civ 1146
  304. ^ TULRCA 1992 s 207A and Sch A2, inserted by Employment Act 2008 s 3
  305. ^ Norton Tool Co Ltd v Tewson [1972] EW Misc 1
  306. ^ See Ministry of Justice, Employment Tribunal and EAT statistics 2009-10 (3 September 2010)
  307. ^ Murray v Foyle Meats Lead [1999] ICR 827
  308. ^ [1977] ICR 235
  309. ^ Safeway Stores plc v Burrell [1997] ICR 523
  310. ^ [1979] ICR 542
  311. ^ [1982] ICR 156
  312. ^ 98/59/EC
  313. ^ Bethan Darwin (16 June 2014). "Bethan Darwin on the employment tribunal ruling that Deloitte had failed to sufficiently consult with Comet staff made redundant". WalesOnline. Retrieved 23 June 2014. 
  314. ^ [1940] AC 1014
  315. ^ The French Code du Travail of 1928 contained the forerunner, now found in Code du Travail article L 122-12. See also, E Herz, ‘The Protection of Employees on the Termination of Contracts’ (1954) LXIX(4) International Labour Review, an early theory of acquired rights.
  316. ^ See Land Registration Act 2002 Sch 3, para 1. In Germany, the Bürgerliches Gesetzbuch § 613a(1), corresponds to the BTD 2001 article 3. It was first introduced in 1972, by analogy with BGB §566 which contains the analogous principle that ‘Kauf bricht nicht Miete’, or "conveyances don't break leases".
  317. ^ [1988] UKHL 10, [1989] ICR 341
  318. ^ Wilson v St Helens BC and British Fuels Ltd v Baxendale [1998] UKHL 37, [1999] 2 AC 52
  319. ^ Credit Suisse First Boston (Europe) Ltd v Lister [1999] ICR 794
  320. ^ University of Oxford v Humphreys [2000] IRLR 183
  321. ^ Süzen v Zehnacker Gebäudereingung GmbH (1997) C-13/95, [1997] ICR 662, where a cleaning lady kept her job at the same school, but a different employer had won the cleaning contract and rehired her
  322. ^ Süzen (1997) C-13/95, "14 In order to determine whether the conditions for the transfer of an entity are met, it is necessary to consider all the facts characterizing the transaction in question, including in particular [1.] the type of undertaking or business, [2.] whether or not its tangible assets, such as buildings and movable property, are transferred, [3.] the value of its intangible assets at the time of the transfer, [4.] whether or not the majority of its employees are taken over by the new employer, [5.] whether or not its customers are transferred, [6.] the degree of similarity between the activities carried on before and after the transfer, and [7.] the period, if any, for which those activities were suspended." (numbering added)
  323. ^ (2001) C-172/99, [2001] IRLR 171
  324. ^ RCO Support Services v Unison [2002] EWCA Civ 464
  325. ^ cf Secretary of State for Trade and Industry v Slater [2007] IRLR 928 and Oakland v Wellswood (Yorkshire) Ltd [2009] EWCA Civ 1094, [2010] IRLR 82
  326. ^ IA 1986 s 19 and Sch B1 para 99
  327. ^ Re Allders Department Stores Ltd [2005] BCC 289
  328. ^ Leeds United AFC Ltd [2008] BCC 11
  329. ^ Krasner v McMath [2005] EWCA Civ 1072, [2005] IRLR 995
  330. ^ See IA 1986 ss 176ZA, 175, 176A, 386, Sch 6, s 74(2)
  331. ^ Insolvency Proceedings (Monetary Limits) Order 1986 (SI 1986/1996)
  332. ^ See Salomon v A Salomon & Co Ltd [1897] AC 22 and the Preferential Payments in Bankruptcy Amendment Act 1897 s 2
  333. ^ ILO Convention No 173 (1992)
  334. ^ 2008/94/EC, replacing 80/987/EC and 2002/74/EC
  335. ^ See McMeechan v Secretary of State for Employment [1997] ICR 549, holding an agency worker could claim; Buchan and Ivey v Secretary of State for Trade and Industry [1997] IRLR 80, holding the purpose of the fund did not allow managing directors to claim, but cf Secretary of State for Trade and Industry v Bottrill [2000] EWCA Civ 781, holding a director who was essentially without any autonomy in a group did deserve protection.
  336. ^ See Mann v Secretary of State for Employment [1999] IRLR 566 and Regeling v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid (1999) C-125/97, [1999] IRLR 379
  337. ^ See Robins v Secretary of State for Work and Pensions (2007) C-278/05, [2007] ICR 779, held that 20% insurance was not enough.
  338. ^ See C O’Cinneide, 'The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times' (2007) Industrial Law Journal 141
  339. ^ This has been in decline recently; in 2005 the Commission for Racial Equality only funded three cases, CRE, Annual Report 2005 (London: CRE, 2006) whereas up to 1984 it was funding one fifth of all claims.
  340. ^ K Marx, Report of the General Council to the Fourth Annual Congress (1969) quotes "the extension of the principle of free trade, which induces between nations such a competition that the interest of the workman is liable to be lost sight of and sacrificed in the fierce international race between capitalists, demands that such [unions] should be still further extended and made international."
  341. ^ Treaty of Versailles 1919, Part XIII, Section I and art 427
  342. ^ See generally, KD Ewing, Britain and the ILO (2nd edn IER 1994) 16. Two further general working time conventions are the Forty-Hour Week Convention, 1935 No 51 and the Holidays with Pay Convention, 1936 No 52
  343. ^ There are 189 Conventions; however, some have been superseded by others. For instance, Conventions Nos 2, 34, 96 and 181 all concern private employment agencies, but only Convention 181 is in force.
  344. ^ Singapore Ministerial Declaration (13 December 1996)
  345. ^ See KA Elliott and RB Freeman, Can Labor Standards Improve under Globalization? (Institute for International Economics 2003)
  346. ^ e.g. EU-South Korea Free Trade Agreement (14 May 2011) OJ 2011 L127, article 13
  347. ^ Tariff Preference Regulation (EC) No 732/2008 arts 7, 8, 15 and Annex II and III
  348. ^ [2006] UKHL 3, [2006] 1 All ER 823
  349. ^ [2011] UKSC 36
  350. ^ [2012] UKSC 1
  351. ^ Rome I Regulation (Regulation (EC) No 593/2008
  352. ^ Brussels I Regulation (EC) No 44/2001
  353. ^ See Rome I, recital 23 and Brussels I, recital 13
  354. ^ (2008) C-319/05

References[edit]

Texts
Treatises
Articles
  • C Barnard, 'The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law' (2009) 38 ILJ 122
  • C Barnard, S Deakin and R Hobbs, ‘Opting Out of the 48 Hour Week: Employer Necessity or Individual Choice’ (2003) 32 ILJ 223
  • N Countouris, 'The Temporary Agency Work Directive: Another Broken Promise?' [2009] 38(3) ILJ 329
  • PL Davies and C Kilpatrick, ‘UK Worker Representation after Single Channel’ (2004) 33 ILJ 121
  • S Deakin, 'Regulatory Competition after Laval' (2008) 10 Cambridge Yearbook of European Legal Studies 581
  • S Deakin, ‘Does the ‘personal employment contract’ provide a basis for the reunification of labour law?’ [2007] ILJ 36
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  • KD Ewing, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1
  • KD Ewing, 'Job Security and the Contract of Employment' (1989) 18 ILJ 217
  • KD Ewing and J Hendy QC, 'The Dramatic Implications of Demir and Baykara (2010) 39(1) ILJ 2
  • KD Ewing and G M Truter,‘The Information and Consultation of Employees’ Regulations: Voluntarism’s Bitter Legacy’ (2005) 68 MLR 626
  • T Goriely, ‘Arbitrary Deductions from Pay and the Proposed Repeal of the Truck Acts’ (1983) 12 ILJ 236
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  • O Kahn-Freund, 'Labour Law' in M Ginsberg (ed), Law and Opinion in England in the 20th Century (Stevens 1959)
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Reports
  • Eleventh and Final Report of the Royal Commission appointed to Inquire into the Organisation and Rules of Trade Unions and Other Associations (1868–1869) Parliamentary Papers vol xxxi
  • Committee on Relations between Employers and Employed, Final Report (1918) Cmnd 9153
  • Whitley Committee, Interim Report on Joint Standing Industrial Councils (1917) Cmnd 8606
  • J Whitley, Royal Commission on Labour in India (1931) Cmd 3883
  • Lord Donovan, Report of the Royal Commission on Trade Unions and Employers’ Associations (1965–1968) Cmnd 3623
  • HM Government, In Place of Strife (1969) Cmnd 3888
  • Lord Robens, Report of the Committee on Health and Safety at Work (1972) Cmnd 5034
  • A Bullock, Report of the committee of inquiry on industrial democracy (1977) Cmnd 6706
  • Green Paper, Trade Union Immunities (1981) Cmnd 8128
  • Department of Employment, Democracy in Trade Unions (1983) Cm 8778
  • Department of Employment, Trade Unions and their Members (1987) Cm 95
  • R Goode, Pension Law Reform (1993) Cmnd 2342
  • A New Partnership for Welfare: Partnership in Pensions (1998) Cmnd 4179
  • Simplicity, Security and Choice: Working and Saving for Retirement (2002) Cmnd 5677

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