Responding to the Failures of Labour Law Exposed by Covid-19

Abstract

The Covid-19 crisis has demonstrated that labour law in the UK has dismally failed in its ostensible primary purpose of protecting and empowering workers. It has not protected workers’ jobs, incomes and their health and safety. In particular, it has failed to ensure that workers have the right to participate in the decisions about their jobs, incomes or safety. Workers in the UK now face the worst recession in Europe with the likelihood of the highest rate of job losses. Well before the pandemic, the delicate and unsteady ‘post war consensus’ of most of the twentieth century was destroyed by the advent of neo-liberalism that was given free reign by the Thatcher government. Rights were diminished, enforcement authorities defunded, managerial prerogative reinforced, trade unions excluded from any role in the State, and the collective power to bargain collectively and to strike subjected to systematic destruction. The process was not reversed in the 13 years of Labour government and, in the decade since 2010, the attack, under the flag of austerity, has been ruthlessly pursued. Collective bargaining coverage steadily declined from 82 percent in 1976 to less than 25 percent before the pandemic. Union membership numbers followed. The consequence of the removal of legal and collective protections for the vast majority of workers was that, before the crisis, their job security, pay, hours, terms and conditions of work were almost exclusively were in the hands of the employer on a take it or leave it basis. The pandemic illuminated the point. It revealed the remarkable and hidden irony that some 7 million ‘key’ workers, essential to maintain the fabric of society, are (doctors excepted) amongst the worst paid and least legally protected of the entire workforce. The contrast between their critical role and the terms and conditions under which they work reveals the irrational and unjustifiable nature of fixing terms and conditions of work through an artificial ‘labour market’ in which working people are no more than disposable commodities, mere ‘human resources’. The economic crisis now unfolding shows the extent of workers’ powerlessness. Workers are dumped and wages slashed even in workplaces such as British Airways with a strong trade union presence. The failure of labour law has never been so starkly visible. II A striking feature of UK labour law is the almost lack of industrial democracy. The law since 1980 has been stripped of the supports for collective bargaining as Conservative governments reversed what had been the policy of the State from (at least) 1909 to 1979. The many restrictions on the right to strike successively imposed since 1979 also undermined collective bargaining. A statutory recognition procedure has been singularly ineffective in reversing the slide. Even where collective bargaining continues, it has been widely undermined. In the public sector, where collective bargaining has most coverage, government has refused to bargain over pay, instead imposing pay caps or Pay Review Bodies to determine wages. In the private sector, firms that would follow national sectoral agreements now set their own terms and conditions; collective bargaining coverage in nonpublicly owned business is around 13 percent. As a result, collective bargaining has largely collapsed and young people have lost even the folk memory of it. There is no industrial democracy outside the few remaining islands of collective bargaining. There is no legislation requiring workers on boards. There are few co-operatives. The request of the TUC for the formation of a National Recovery Council with unions, employers and government working together has been ignored1. III The abject failure of the law to protect the health, safety and lives of workers in the pandemic is evident to all. Scores of essential workers have lost their lives to Covid-19 and thousands of others have become infected. Yet it remains the statutory duty of employers to ensure adequate protection for the life and health of workers in all occupations, and the duty of the State to ensure that this obligation is met. The obligations to provide adequate personal protective equipment, a safe place of work, risk assessments and to report illness and injury caused by work are not merely statutory duties but are backed by criminal liability. The problem is that, through the...