Competition and Labour Law in the United Kingdom

Labour and employment regulation is a complex and ever changing area of the law fed by social and economic policy, politics, external and internal pressures, and cultural influences. In isolation, labour regulation is particular to the country in which it is found. However, in a world growing smaller due to globalisation,2 the differences in labour regulation between jurisdictions can become an issue in cross-border business transactions and may even affect a multi-national company’s choice of investment. The flexibility of labour regulation can affect the attractiveness of a jurisdiction, as evidenced by the outsourcing of labour intensive sectors of many corporations to developing countries which lack the expense of protective labour regulation and benefit from a cheaper labour force.3 Legal systems within the EU have been on a process of slow convergence since the 1950s. However, in examining legal systems with a view to determining their core similarities, some exhibit areas of convergence while other aspects remain quite different.4 Even when comparing those systems that are similar, there remain distinctive characteristics distinguishing one from another. There are differences that seem irreconcilable even within legal groups such as those jurisdictions adhering to the common law or civil law systems. While certain rules and solutions may seem alike, legal cultures and traditions can differ significantly,5 leading to fundamental differences in approach to regulation and policy initiatives. These differences in approach are influenced by aspects of culture and history which cannot easily be separated from the legislative process. Convergence therefore becomes more difficult with culture bound areas of the law, such as labour and employment. EU social policy has aimed to harmonise standards based on a minimum floor of rights7 to a level which is more reflective of what is present in the more socially progressive countries, such as France. However, lack of concrete EU wide definitions have made coordination in social policy difficult. Though similar terms to describe elements of procedure may be used, the ideologies and policies informing the objectives of those procedures create a barrier to mutual understanding and an obstacle to coordinated action. The question remains then as to how it may be possible to find a means of coordinating the law in order to create a more balanced environment for cross border business. In discovering the influences on the aims of socially oriented regulation, it may be possible to identify areas where coordination and perhaps convergence may be realistically attempted and to work around those areas in which the different social aims make such convergence impossible or at least improbable in the near future. In order to attempt an alignment of labour systems in the EU, which of itself is a potentially unrealistic suggestion, at least in the current political climate and particularly following the United Kingdom’s referendum outcome and pending exit from the EU, an understanding of the fundamental values which have influenced a country’s approach to employment law and social policy is vital. Any EU level coordination would require diplomacy and compromise, a full knowledge and understanding of the elements of the systems being the most important tool to guide any such process. Though the current political crisis of 2016 gives little hope toward this end, an understanding of the underlying factors that influence jurisdictional approaches to social policy and employment law may be a useful exercise in the event that the crisis is resolved and harmonisation, or at least a managed convergence, again becomes an aim of EU social policy.8 To this end, an analysis of the historical context of labour regulation and the working classes will reveal much about the fundamental values upon which labour systems and employment regulation are based, and the differences between them. A typically top-down technical analysis would only expose a positivist view of the law,9 isolated from its constituent parts without which it would not exist in its current form. The comparative perspective presented is not only useful for the development of solutions, but also for the discovery of other alternatives.10 This unique methodology could then be relied upon as a means finding a path to greater coordination by attempting to align systemic values in the future, should the EU survive the political turmoil that has engulfed 2016.

The AMA does not apply to workers’ collective actions protected by labour law. Due to the uncertainty in the definition of workers and coverage of labour law, the extent to which self-employed workers’ collective actions are exempt from the AMA has become unclear. In such a context, it is imperative to recognise that small economic entities’ collective bargaining and other activities that trade unions are engaged in are not always anticompetitive and that an AMA violation is not found unless substantial restriction of competition, or lessening of competition, is caused by the practices. Moreover, the actions of co-operatives are also exempt from the AMA and those who are not protected as workers can strengthen their bargaining position by forming co-operatives. The AMA is primarily enforced by the JFTC and its interest has been rather to protect small businesses from those with superior bargaining positions. For the time being, it is unlikely that the JFTC will start prosecuting the collective actions of self-employed workers which may be protected by the labour law. The paper details the relationship between labour and competition law in Japan focusing worker's collective actions.

UBER is often described as disruptive innovator. This paper examines whether the UBER model disrupts the classical competition analysis thereby creating the uber-cartel, a cartel to which the normal competition rules don’t apply. This working paper on UBER and UBER-like business models examines issues that such a model faces with regard to labour and competition law with a particular focuses on the competition law implications if UBER’s business model is not subject to labour law. The paper first describes the UBER model and the labour law questions. Then it examines the possible competition law implications of UBER and UBER-like business models. After presenting a recent antitrust court decision in the US in a pending antitrust case against UBER, the paper finally briefly explores potential ways how UBER and UBER-like can prevent antitrust liability.

The spread of non-standard forms of work, including platform work, has created some friction between labour law and competition law, in particular concerning the collective bargaining of self-employed workers. This article aims to suggest a different, complementary rather than antagonistic, relationship between competition law and labour law. It initially explores the legal construction of the antagonistic relation between labour law and competition law, which is based on the conceptualisation of the two areas of law as separate and isolated legal fields. It explains that such conceptualisation is problematic as it leads to the risk of fundamental conflicts between the two disciplines and some uncertainty as to their respective scope, with the result that the level of labour protection may suffer. This calls for breaking the dichotomy and for ensuring a continuum of protection for various forms of labour, under both labour law and competition law. It thus puts forward concrete suggestions as to the strategies to be followed in order to achieve this goal.

The spread of non-standard forms of work, including platform work, has created some friction between labour law and competition law, in particular concerning the collective bargaining of self-employed workers. This article aims to suggest a different, complementary rather than antagonistic, relationship between competition law and labour law. It initially explores the legal construction of the antagonistic relation between labour law and competition law, which is based on the conceptualisation of the two areas of law as separate and isolated legal fields. It explains that such conceptualisation is problematic as it leads to the risk of fundamental conflicts between the two disciplines and some uncertainty as to their respective scope, with the result that the level of labour protection may suffer. This calls for breaking the dichotomy and for ensuring a continuum of protection for various forms of labour, under both labour law and competition law. It thus puts forward concrete suggestions as to the strategies to be followed in order to achieve this goal.

The United Kingdom’s response to the COVID-19 crisis with respect to labour law and protecting workers and working relationships had several idiosyncratic aspects that distinguished it from ostensibly similar attempts to protect jobs during the pandemic. The UK approach was striking, in comparative terms, due to its lack of engagement with any process of social dialogue at the national, sectoral, and enterprise levels. The structures of worker representation of this type are so weak in the UK, due in part to a particular tradition of collective bargaining, that any such involvement would possibly not even have been feasible given the short time frame without the creation of new ad hoc infrastructure. While most other advanced economies made use of relatively familiar methods of labour law, alongside macroeconomic intervention and state support, the UK’s response was largely devoid of any traditional labour law content, and did not make use of labour law categories or methods, in particular the placing of obligations on the employer. this meant that the UK’s approach reflected a form of “labour market” regulation which aimed, unusually, at solidifying rather than deregulating the labour market. While this approach comes with many significant complexities and risks, it provides a potential model for future interventions which do not rely on sometimes tired or outdated labour law categories.

Statutory Sick Pay, Jobseeker's Allowance, and Employment and Support Allowance are employment-related benefits in the United Kingdom (UK). They correspond to the Injury and Disease Allowance and Unemployment Insurance in Japan. The Government of the UK is determined to reform the benefit system to make it fairer and to improve financial work incentives, using the slogan "Welfare to Work". Against this background, the government of the UK united some non-contributory benefits into a new "Universal Credit" scheme, which started in April 2013. The labor policy was also reformed to improve work incentives, for example by abolishing the Flexible New Deal program and uniting all the "Welfare to Work" policies into the "Work Programme". These reforms are useful for reconsidering the labor and employment-related policy and benefit system of Japan.

Statutory Sick Pay, Jobseeker's Allowance, and Employment and Support Allowance are employment-related benefits in the United Kingdom (UK). They correspond to the Injury and Disease Allowance and Unemployment Insurance in Japan. The Government of the UK is determined to reform the benefit system to make it fairer and to improve financial work incentives, using the slogan Welfare to Work. Against this background, the government of the UK united some non-contributory benefits into a new Universal Credit scheme, which started in April 2013. The labor policy was also reformed to improve work incentives, for example by abolishing the Flexible New Deal program and uniting all the Welfare to policies into the Work Programme. These reforms are useful for reconsidering the labor and employment-related policy and benefit system of Japan.

Innovation is central to competition policy. Indeed, in some industries, it is the primary means by which firms compete. The metaphors are dramatic: innovation is a ‘life and death matter for the firm’ and ‘a weapon in the arms race of competition’. Even more fundamentally, innovation, economists tell us, is pivotal to the capitalist economy as a whole. Baumol, in his book on innovation, declares that it is innovation that drives economic growth and that, without it, economies stagnate. Despite the well-established role of innovation in competition law and policy, however, the contribution such a perspective brings to the particular innovation issues raised in Gray’s case, the subject of discussion in other chapters, is limited. A contest between an employer and employee for intellectual property rights to an invention has clearer implications for labour, intellectual property and corporate law. The response of competition law to this issue, it seems to me, is far less clear. In broad terms, competition law and policy is concerned with the promotion of competition or, putting it in the more negative terms of competition legislation, prohibiting conduct that lessens competition.5 With this focus, competition law would seem to have little interest, in a general sense, in whether intellectual property rights are granted to an employer or an employee. It is true that there is a well-established interface between competition and intellectual property laws and, in a broad sense, some of this interaction may be relevant. This is because competition law, like intellectual property law, sees innovation as one of its key aims.

On June 23, the citizens of the United Kingdom (UK) voted to leave the European Union (EU) through the referendum known popularly as Brexit. Mick Armstrong, the chair of the Principal Executive Committee of the British Dental Association (BDA), announced, “We did not take a position in this referendum.” However, it has become clear that Brexit does have specific implications for dentistry. According to a recent article in the British Dental Journal just before the referendum, “whether or not the UK leaves or remains, the decision will affect the dental profession in a number of ways; should we face leaving the EU, there will be many important aspects to consider” (doi: 10.1038/sj.bdj.2016.371). Since the UK voted to leave the EU, there would be a two-year period of negotiation under Article 50 of the Lisbon Treaty to determine the details of the leave agreement. During the two years, which will begin when the UK government formally informs the EU of the intent to leave, the UK is still obligated to follow the EU treaties, but is not to be part of any decision-making processes. According to many experts in EU law, however, the two-year period seems quite unlikely to be long enough to reach new trade and immigration agreements, and the success in doing so will be heavily dependent on how cooperatively the other European nations work with the UK. If they cannot reach a new deal by the deadline, the membership in the EU will simply be lost without complete agreements. All of this produces a cloud of uncertainty around healthcare, business, and the economy more broadly. Even though it is difficult to foresee the specific consequences of Brexit, the UK’s decision to leave the EU will certainly lead to significant changes in many areas of science, including dentistry. Many scientists and clinicians harbor serious concerns about the future of science in the UK and the knock-on effects on science in other parts of the world. For example, UK research may face cuts in funding due to a shrinking economy or lack of access to EU funds. UK universities may find it more difficult to bring top EU scientists and students to its campuses. Meanwhile, dental clinicians of the UK will now be subjected to changes in a majority of current regulations on workforce organization, employment law, data protection, and maintenance of medical devices. Given this situation in which much of the future of dentistry for the UK and beyond has been thrown into uncertainty, we can appreciate Mr. Armstrong’s recent statement that “BDA’s prerogative is to ensure this profession is heard by any governments making decisions that impact on care, wherever they are based, and whatever happens at the ballot.” Undoubtedly, there is a universal hope in the dental community that the UK and EU governments will ensure that the aftermath of Brexit will not compromise their constituent clinicians’ ability to continue to deliver quality care or their researchers’ ability to access the resources needed for innovation in dental research.

Gordon Anderson has made enduring contributions to two linked strands of labour law scholarship: analysis of the impact on labour law on policies of deregulation, and the study of labour law as a mechanism for constituting and structuring the labour market. This article considers the prospects for labour law reform in New Zealand and the United Kingdom in the light of scholarship on these issues since the 1980s. It argues that a return to a more worker-protective labour law in these countries is feasible despite the legacy of the deregulatory changes of the 1980s and 1990s. Fundamental changes in labour laws are not brought about by legal scholarship, but, as in the 1980s, an economically-informed analysis of the operation of labour laws could make a difference to the next wave of reforms.

This study analyzes labor law arrangements in Indonesia, Germany and United Kingdom, mainly how several countries protect digital platform workers. Furthermore, this research evaluates the implementation of such a law to advance labor law in Indonesia in protecting digital platforms workers. This research used normative legal analysis, employing a statutory, conceptual, and comparative approach with Germany and the United Kingdom. The results indicate that the dynamics of new employment status or partnership working relationships and workers’ flexibility in the gig economy phenomenon are not only found in Indonesia. Several countries, for example, Germany and United Kingdom, have found strategies to tackle this phenomenon. The government can address the above employment problems in two approaches: via court decisions and amending or revising relevant legislation. Classifying the status of employment relationships in this new phenomenon is crucial for implementation in Indonesia. In the future, such classification can be used as a reference in developing Indonesian Labor Law. The government should consider the necessary substantive protections for workers, from flexible working arrangements to creating new standards more responsive to the structure of growing organizations and the emergence of algorithmic management.

The employment arrangements in the Premier League are regulated by national employment and labour relations legislation and case law which, in turn, is influenced by European law and to a lesser extent, the European Court of Human Rights. This chapter discusses the legal principles that are applicable to an employment relationship in a unionized environment such as the Premier League. It canvasses the definition of employee and worker in national law, describes the key provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 and discusses the cases arising under the common law doctrine of restraint of trade in the context of professional sport. The restraint of trade doctrine rather than competition law has been used to challenge overly restrictive working conditions in professional sport. Statutory and non-statutory labour exemptions similar to that applicable in the United States of America do not exist in national law in the United Kingdom.

Health policy analysis in perspective, Alison Hann the NHS reforms and New Labour policy, Calum Paton New Labour's health policy - a third way to organize?, Bruce Wood and Steve Harrison variations on a theme - New Labour, health inequalities and policy failure, Martin Powell and Mark Exworthy G.P. independence under threat? - the first wave Primary Care Act pilot site contracts, Rod Sheaff and Andrew Lloyd-Kendall at the sharp end - implementing community care in a cut-back environment, Damien riley evidence-based medicine in the United Kingdom, Steve Harrison cervical cancer screening - policy or implementation failure?, Alison Hann.

This article explores the issue of the ownership of teaching materials from a comparative law perspective, the legal systems invoked being Sweden, the United Kingdom and the United States. The ownership of teaching materials has become a more compelling question as teaching materials become more digitalized and more easily rendered into commercial assets. A shift in approach by certain educational institutions with respect to this issue of who owns the rights to teaching materials has been underway during the past decade. As teaching materials have become more and more digitally packageable and reproducible, to the extent of even having virtual classrooms, the issue of ownership now takes on different legal as well as financial values. The ownership of rights to teaching materials touches upon several different areas of law: employment law, labour law, contract law, constitutional law, academic freedom and intellectual property rights law, and to date is not definitively resolved either in custom, agreement or by law in any of the three jurisdictions chosen. The conclusion here is that given the interests involved, the integrity of authors as well as the academic freedom of teachers, a constitutional approach transcending the employment and labour law approaches needs to be taken to guarantee the greatest amount of academic freedom. The directed work approach is found to best balance the different interests involved.