British Labour Law Research Articles

Can We Trust the Courts in Labour Law? Stranded Between Frivolity and Despair

Historically, the ruling theory of British labour law, collective laissez-faire, was rooted in distrust of courts. Over the last forty years, there have been profound and enduring constitutional changes. Successive governments have pursued deregulatory agendas through legislation, and workers and organized labour have turned increasingly to courts to vindicate their fundamental rights. In light of these changes, this article re-assesses the case against courts in British labour law. It identifies a vital yet subsidiary role for courts in labour law. This should lead scholars to reappraise the marginalization of doctrinal legal scholarship, lest the legal academy become stranded between frivolity and despair. Courts, Fundamental Rights, Statutory Interpretation, Trade Unions, Strategic Litigation

Can We Trust the Courts in Labour Law? Stranded Between Frivolity and Despair

Historically, the ruling theory of British labour law, collective laissez-faire, was rooted in distrust of courts. Over the last forty years, there have been profound and enduring constitutional changes. Successive governments have pursued deregulatory agendas through legislation, and workers and organized labour have turned increasingly to courts to vindicate their fundamental rights. In light of these changes, this article re-assesses the case against courts in British labour law. It identifies a vital yet subsidiary role for courts in labour law. This should lead scholars to reappraise the marginalization of doctrinal legal scholarship, lest the legal academy become stranded between frivolity and despair. Courts, Fundamental Rights, Statutory Interpretation, Trade Unions, Strategic Litigation

Can We Trust the Courts in Labour Law? Stranded Between Frivolity and Despair

Historically, the ruling theory of British labour law, collective laissez-faire, was rooted in distrust of courts. Over the last forty years, there have been profound and enduring constitutional changes. Successive governments have pursued deregulatory agendas through legislation, and workers and organized labour have turned increasingly to courts to vindicate their fundamental rights. In light of these changes, this article re-assesses the case against courts in British labour law. It identifies a vital yet subsidiary role for courts in labour law. This should lead scholars to reappraise the marginalization of doctrinal legal scholarship, lest the legal academy become stranded between frivolity and despair. Courts, Fundamental Rights, Statutory Interpretation, Trade Unions, Strategic Litigation

Covid-19 and the Failure of Labour Law: Part 1

In this article, we consider how Covid-19 revealed the extent to which, in Britain, the core functions of labour law have been compromised by successive governments stretching back to the 1980s and how workers collectively have been failed as a result by a discipline intended ostensibly in their interests. We seek to measure these deficits against a set of core normative principles rooted in ILO standards which we believe underpin labour law as a discipline of worker protection. We look first at the exploitation of critical workers; second at the failure generally to make adequate provision for income security; and third at issues relating to health and safety at work. Our consideration of these issues addresses both the substantive law and the means for its enforcement. Having considered the systemic failures and lack of resilience of British labour law in this article, we intend to return to the theme in Part II at a later date to address the lessons learned and the overhaul which the pandemic has revealed to be necessary.

Zero hours contracts

The article focuses on comparing details and differences (Zero hours contracts) in British labour law with the performance of work on the basis of Czech agreements on out-of-work contracts and influence these non-standard labour relations on employment policy and possible negative effects on labour-law securities.

The consequences of Brexit for the labour market and employment law – challenges for the European Union from a Polish perspective

One of the most important problems arising from Brexit will concern labour law and the labour market – specifically the future development of labour law at the European level, the situation in domestic labour markets, and (as a consequence) changes in national legislations. At present, it is difficult to draw any precise conclusions regarding the impact of Brexit; however, it is possible to identify some of the more likely scenarios and consequences. There are substantial questions concerning: the future of EU law after Brexit and how Brexit will affect British labour law; the situation of multinational labour law institutions (e.g. European Works Councils), as well as the posting of workers. A lot depends on the final agreement between the UK and the EU. A close economic partnership may enforce the maintenance of the most important labour standards and mechanisms which are necessary to guarantee equilibrium between the partners.

EU labour law section: The Great Deregulation and the campaign for free movement of labour post-Brexit

As opposed to the allusions made both in the British media and politicians' statements, particularly in the Leave campaign, that the EU has created negative living conditions for people in Britain, EU labour law has had a positive effect on local labour law and free movement of labour is a crucial aspect of social, economic and political development. This article focusses on EU labour law to make this argument, looking first at the ways that British labour law has been influenced by EU labour law. Then I discuss a defining feature of EU membership: the free movement of labour. The threat of its removal when the United Kingdom leaves the single market has led to a significant national campaign, 'Free Movement of Labour: Campaign to defend freedom of movement across Europe, post-Brexit'. (1) In this article, I am not defending the EU as a perfect regional framework by any means. The EU has been repeatedly critiqued for its neoliberal agenda and I recognise its limitations. What I am saying is that there has been scant discussion of why the vote swung to 'leave' during this particular phase in Britain's history. What did voters actually want? Why was the majority vote to leave the EU located in post-industrial working-class areas of Britain? What did people think leaving the EU would do for Britain? In the wake of unanswered questions, Article 50 has been triggered. In the following piece, I deal, not with the questions of why people voted to leave, which is dealt with in other articles in this symposium in Capital & Class, but what it is likely to mean for workers after the United Kingdom leaves the EU. To do so, I outline how Britain has benefited from EU labour law over time. How Britain has benefited from EU labour law The UK voted to leave the EU in a momentous referendum held on 23 June 2016. This was the second time Britain has held an EU-related referendum. The first time was in 1975, where the vote was whether to stay within the European Economic Community. Britain has had a tense relationship with the EU since its formation in the 1990s and in its lead up to its joining the EC. Historically, leading Conservatives such as Churchill, and Labour Party leaders, such as Gaitskell, were concerned that Britain should be more focussed on maintaining its transatlantic relationship with the United States, or otherwise was more interested in a transatlantic relationship with the United States, its colonial relations, or otherwise protecting its national sovereignty, and were therefore sceptical about joining or applying for membership in the then-EEC or EC. As a result, the United Kingdom did not join the EC until 1973, under a Conservative government. In its campaign for the general election one year later, the Labour Party committed itself to a referendum to let people make that decision, announcing in its 1974 manifesto that The Labour Government pledges that within twelve months of this election we will give the British people the final say, which will be binding on the Government--through the ballot box--on whether we accept the terms and stay in or reject the terms and come out. What is interesting about this manifesto is its commitment to the prioritisation of social justice over economic 'rights'. This is in marked contrast to Theresa May's letter triggering Article 50, 43 years later, which puts forward a plea for economic and security cooperation after the UK's exit from the EU to be negotiated after the quite different second referendum result in June 2016. The letter triggering Article 50 says nothing about social justice and all mentions of 'security' are in the context of an international terrorist threat. The Labour Party in the 1970s saw the British people's voice as important with regard to 'social security', a 'policy for morality, equality and justice' in foreign policy and security for 'people who live in furnished tenancies'. The wording of the letter triggering Article 50 is curious given that many of the British population who voted to leave the EU live in post-industrial areas, where social justice in the way of public spending and job creation has been extremely low. …

New Perspectives on Collective Labour Law: Trade Union Recognition and Collective Bargaining

Abstract Drawing on the Manifesto for Labour Law published earlier this year, we consider Kahn-Freund’s assessment of British labour law (for the first three quarters of the twentieth century) as voluntarist, abstentionist collective laissez faire as espoused by Bob Simpson. In contrast (and utilising Simpson’s tool of ‘law in context’), we point up the role of the state during this period in implementing labour law policy in support of extensive collective bargaining by the use of public law powers (in the contemporaneous sense in which such law was understood). Drawing on this legacy, we set out the measures by which collective bargaining, in particular at sectoral level, might be restored. We deal with the establishment of Sectoral Employment Commissions consisting of equal numbers of employers and union representatives (similar to the old Joint Industrial Councils). In default, tripartite bodies based on the extinct Wages Councils would be established. We propose the (re) use of ‘fair wages clauses’ (ie public procurement arrangements) to require participation in collective bargaining and the observance of collective agreements. We consider the reciprocal issues of representation at the workplace, union access thereto and reform of the recognition machinery, taking in Simpson’s analysis of the current and earlier recognition legislation.

Focus: Starting from Scratch: A Manifesto for UK Labour Law

INTERNATIONAL union rights Page 10 Volume 23 Issue 2 2016 British laws on trade unions are the most restrictive in the Western World FOCUS ❐ BREXIT I n the same month as the Brexit referendum result, the UK’s Institute for Employment Rights (IER) has published its Manifesto for Labour Law: towards a comprehensive revision of workers’ rights. The IER’s proposals on reform of the UK’s labour laws could not be timelier. Fortythree years of EU membership may have contributed some gains for the rights of British workers , but current comparisons with Europe present a stark picture of working life in the UK: ‘On average, British workers work more hours per week, more days per year, more years before they retire, after which they receive lower levels of pension than most of their European counterparts. In comparison to other European workers they have generally received less education and training, and (because of lack of employer investment ) their productivity is lower. They get fewer paid holidays than almost all European comparators (the Working Time Directive notwithstanding). Their pay is so low that a great proportion of them are in poverty (and the State subsidises employers’ low wages in respect of a higher proportion of workers) than almost anywhere elsewhere in Europe. The gender pay gap is at a wholly unacceptable level’. As the manifesto’s authors explain in detail, the UK has ‘a framework of law born out of 19th century conditions, which has bypassed many advances of the 20th century, which ignores today’s economic and workplace realities, and which is not fit for purpose in 21st century Britain’. A debate on the future of British labour law is long overdue. The authors address head on the relationship between the dire state of workers’ rights in the UK and the current legal restrictions on the exercise of trade union rights, which have increasingly made collective actions such as striking so burdensome as to be almost impracticable. British laws on trade unions in 2016 remain ‘the most restrictive in the Western World. This is indisputable in relation to the right to trade union autonomy, right to strike, and the right to bargain collectively’. The Conservative government’s latest legislative attack on trade unions – the Trade Union Act 2016 – was roundly criticised for containing provisions which violate ILO Convention 87, and concerns were raised about its compatibility with the European Convention on Human Rights. Some of these aspects were watered down in response to pressure from trade unions. Nonetheless, many contested provisions – concerning ballot thresholds and the expanded role of the trade union Certification Officer – have now been enacted. The Manifesto calls for that Act to be repealed in its entirety, immediately. The restoration of collective bargaining The Manifesto’s principle recommendation for reform is to shift the balance of regulation from legislation to collective bargaining. The IER’s 25 comprehensive policy recommendations are founded on building ‘extensive sectoral collective bargaining structures underpinned by strong trade union rights’. The authors acknowledge that such a shift is ‘contingent on strong State support for [collective bargaining] and for trade unions (and employers’ associations), upon whose shoulders will lie a heavy responsibility for delivery’. Legislation therefore continues to play a key role. But the authors also amply demonstrate that legislation alone is an ambivalent and sometimes ineffective tool: the rampant levels of inequality in the UK at present are not an ‘unavoidable product of the operation of the ‘labour market’’. Rather, ‘the law has been moulded purposefully to achieve these outcomes’ – in particular since the Thatcher-era. One of the principle effects of this has been the cynical destruction of collective bargaining since 1980. Once the preferred method of regulation, collective bargaining has been largely displaced by legislation: ‘By 2011 Britain had fallen to the second lowest in Europe in terms of the level of collective bargaining coverage. Coverage is probably less than 20% today, lower than at any time since before the First World War’. The result is in ‘an unnecessarily legalistic, inefficient and immensely complex system of rules, contained in an ever-growing statute book too heavily dependent on lawyers, tribunals, judges and courts for their enforcement’. The weakness of this labour...

Comment: Ruth Dukes on Wedderburn and Kahn-Freund

This short note records and slightly expands upon my comments on Ruth Dukes’ paper to the Conference on the Academic Scholarship and Legacy of Bill Wedderburn; I leave those comments in the form of an address to the conference itself, in the hope that this will convey the spontaneity of my reactions to the deliberations of the conference itself. We are having a very rich day of discussion of Bill Wedderburn’s labour law scholarship, and, as Bob Hepple and Simon Deakin predicted at the outset, it has been especially enriched by the productive distance which the passing of the years has already placed between Wedderburn’s work and the experience of the younger scholars who have given the two main papers today. A central and suitable pre-occupation of today’s papers has been the relationship between the labour law scholarship of Wedderburn and that of Otto Kahn-Freund. I myself, having first met both Wedderburn and Kahn-Freund just about 50 years ago when they were already, respectively, the young and the old grand master of British labour law studies, find it difficult to achieve any degree of productive distance from them; but perhaps on the other hand from that proximity, I can add a couple of incidental notes to Dukes’ very insightful analysis of the ways in which Wedderburn’s work in the field of labour law can be differentiated from that of Kahn-Freund. One such note concerns their significantly different formative experiences of the law in general, and the other concerns their somewhat different formative disciplinary affiliations within the law.

Editorial

This is the second issue of the Journal's fortieth anniversary year. In the course of the year we are publishing a series of feature articles which revisit themes of long-standing importance to the field of labour law, in the light of contemporary developments. In this issue's feature article, Breen Creighton addresses the question of workplace representation from an Australian perspective. He provides an historical overview of the distinctive Australian model of wage determination through conciliation and arbitration, explaining its core features and tracing its evolution in a way that highlights its significance as one particular variant of the national labour law systems that emerged in the first half of the twentieth century. He then examines in detail the recent changes to the law made by the Fair Work Act 2009. This legislation, passed by a Labor government, marked a shift in approach from the deregulatory laws of the Howard era, and, to some degree, a recollectivisation of Australian labour law. At several points, it offers solutions to issues of workplace representation which are radically different from those currently operating in British labour law via the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992.

The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law: Case C-319/06 Commission v Luxembourg, Judgment 19 June 2008

The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law: Case C-319/06 Commission v Luxembourg, Judgment 19 June 2008

Labour Law 2008: 40 Years On

What has happened to British Labour Law over the past 40 years? It has become a larger more juridified subject. But its development requires an understanding of the New Capitalism that has emerged, with capital more mobile and powerful in globalisation. Three aspects are chosen for comment: First the meaning of the recent review by the Law Lords of economic torts. Second, the arguments about the contract of employment in Britain and Italy, in the context of the regulation debate, forthcoming legislation and the search for acceptable standards of social justice. Thirdly, the scene is set in European law for a new chapter in the tension between employers' economic freedoms in the internal market and social rights, including the right to strike.

Book Review: A History of British Labour Law 1867-1945

Book Review: A History of British Labour Law 1867-1945

A History of British Labour Law 1867–1945, Douglas Brodie

<i>A History of British Labour Law 1867–1945</i>, Douglas Brodie

Review: A History of British Labour Law, 1867-1945

Review: A History of British Labour Law, 1867-1945

History of British Labour Law

History of British Labour Law

British Labour Law at the Court of Justice: A Fragment

British Labour Law at the Court of Justice: A Fragment

Contre l'abstentionnisme en droit du travail

The general policy of British labour law during this century has been to abstain from legal intervention in order to permit collective bargaining to flourish. This policy rests upon an ideology called industrial pluralism which advocates collective bargaining as the means of introducing democracy, the Rule of Law, and fairness into the workplace. The author argues that collective bargaining fails to achieve the ideals of industrial pluralism because it overlooks bureaucratie domination in the workplace. This can only be overcome by detailed legal regulation designed to secure workers' rights.

Contracts of employment

The Employment Protection (Consolidation) Act defines a contract of employment as: a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing. The question whether a person is an employee or an independent contractor may seem both simple and unnecessary, but it is in fact fundamental to an understanding of British labour law. An employee is said to be working under a contract of service, and an independent contractor under a contract for services. This distinction between a contract of service and a contract for services is difficult to draw, but it is a crucial one. Many rights and duties, both at common law and by statute, hinge upon this distinction. At common law an employer is under a general vicarious liability for the torts of his employees committed in the course of their employment. His liability in respect of independent contractors is much more limited.