United Kingdom labour law

working population 32.5 million people were employed, there was 4.2% unemployment, and 6.6 million trade union members. The average income was £30,472, and the average working week was 36 hours.^[1]

United Kingdom labour law regulates the relations between workers, employers and trade unions.

right to strike: a fundamental requirement of democratic society in international law. Under the Trade Union and Labour Relations (Consolidation) Act 1992

strike action is protected when it is "in contemplation or furtherance of a trade dispute".

As well as the law's aim for fair treatment, the

fixed-term contracts must be treated equally compared to full-time, direct and permanent staff.^[8] To tackle unemployment, all employees are entitled to reasonable notice before dismissal after a qualifying period of a month, and in principle can only be dismissed for a fair reason. Employees are also entitled to a redundancy payment if their job was no longer economically necessary.^[9] 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.^[10]

History

King Richard II

.

Modern labour law is mostly 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.

R v Knowles, ex parte Somersett,^[12] and the subsequent Slave Trade Act 1807 and Slavery Abolition Act 1833 enforced prohibition throughout the British Empire.^[13] In the 19th century, production boomed. Gradually people's relationship to their employers moved from one of status - formal subordination and deference - to "freedom of contract" in choosing where to work.^[14] However, freedom of contract did not, as the economist Adam Smith observed, change a worker's factual dependency on employers and the threat of poverty from unemployment.^[15]

"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."

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

At the

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 Labour Party, to lobby for the reversal of the law. After their landslide victory in the 1906 general election, the Trade Disputes Act 1906 enshrined 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 the first minimum wages and the National Insurance Act 1911

levied a fee to insure people got benefits in the event of unemployment.

Versailles Treaty in 1919, on the principle that "peace can be established only if it is based on social justice".^[19]

After the brutality of World War I, the

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, at though it was broken, the Labour Party formed its first government in Parliament in 1929. The onset of the Great Depression

, and then war, meant little was achieved.

After the Second World War, under the first majority Labour government of

Social Chapter of the Maastricht Treaty brought employment rights squarely into EU law. 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.^[29] 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^[30]

which would have codified union governance, and created more direct workplace participation, reform did not take place.

UK miners' strike (1984–1985) was a bitter confrontation between the Thatcher

government and coal mine workers, which has left resentment till today.

From 1979, a new Conservative government began dismantling most

zero hour contracts to get unemployment insurance, and frustrating the right to strike in the Trade Union Act 2016

. This has led to consistently rising inequality since 1979, and to large increases in child poverty since 2010.

Employment rights and duties

UK labour law's main concerns are to ensure that every working person has a minimum charter of rights in their workplace, and voice at work to get fair standards beyond the minimum.

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

The UK has not yet codified a single definition of who is protected by labour rights. The law has two main definitions (employee and worker) and three minor definitions (jobholder, apprentice, and an "employment relation") each with different rights.

EU law does have one consolidated definition of a 'worker': 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.^[38] This reflects the kernel of classical labour law theory, that an employment contract is one infused with "inequality of bargaining power",^[39] and stands as a justification for mandating additional terms to what might otherwise be agreed under a system of total freedom of contract

.

trade unions to secure a living wage

.

First, an "employee" has all main rights, including job security, retirement, child care, and the right to equal treatment. Most people are employees, although this has not yet been fully defined in the

Lord Clarke held that an exchange of work for a wage was essential, but that employment contracts could not be treated like commercial agreements.^[50] As he put it,^[51]

the
purposive approach
to the problem. If so, I am content with that description.

This meant that a group of car valeters, although their contracts said they were self-employed, 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.[52] The second major category is of a 'worker'. This is defined in Employment Rights Act 1996 section 230 as someone with a contract of employment or someone who personally performs work and is not a client or a customer. This means all employees are workers, but not all workers are employees. Non-employee workers are entitled to a safe system of work, a minimum wage and limits on working time, anti-discrimination rights, and trade union rights, but not job security, child care, and employers do not make National Insurance contributions for them. The Supreme Court has held that this category contains quasi-self-employed professionals, such as partners of a law firm,^[53] and high-earning plumbers.^[54] However, staff who are employed through an agency, will be employees in relation to the agency. Though not entitled to employee rights, these workers may form trade unions and take collective action under UK, EU and international law, to protect their interests.

Contract of employment

Once a person's work contract is categorised, the courts have specific rules to decide, beyond the statutory minimum charter of rights, what are its terms and conditions.

Lord Kerr emphasised that if it affects statutory rights, the way courts construe a contract must be "intellectually segregated" from the general law of contract, because of the employee's relation of dependency.^[57]

In this case, Ms Barratt was told her employment was terminated in a letter that she opened 3 days after its arrival. She claimed her dismissal was unfair within three months (the time limit to bring claims in Tribunals) after reading the letter, but the employer argued it was barred because in commercial contract cases, one is bound by a notice as soon as it arrives in business hours. The Supreme Court held that Ms Barratt could claim: she was only bound by the notice when she actually read it. The purpose of employment law to protect the employee, and so the rules must be construed to uphold employees' rights.

Everything an employee is promised or agrees to becomes a term of the contract, so long as this does not contradict statutory labour rights. In addition, terms can be incorporated by reasonable notice, for instance by referring to a staff handbook in a written employment agreement,[58] or even in a document in a filing cabinet next to the staff handbook.^[59] While without express wording they are presumed not binding between the union and employer,^[60] 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 in one case to potentially qualify, but in another case a clause purporting to censure compulsory redundancies was held to be binding 'in honour' only.^[61]

As well as statutory rights, expressly agreed terms, and incorporated terms, the employment relation contains standardised implied terms, on top of the individualised implied terms that courts always construe to reflect the reasonable expectations of the parties.

wages even when the employer has no work to offer.^[64] The House of Lords held employers have a duty to inform their employees of their workplace pension rights,^[65] although a lower court stopped short of requiring employers to give advice on qualifying for workplace disability benefits.^[66] The key implied term is the duty of good faith, or "mutual trust and confidence". This is applied in many circumstances. Examples include requiring that employers do not act in an authoritarian manner,^[67] do not call employees names behind their back,^[68] do not treat workers unequally when upgrading pay,^[69] do not run the company as a front for international crime,^[70] or do not exercise discretion to award a bonus capriciously.^[71] 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 may when they 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.^[72]

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 agreed terms. Employments relation give the employer discretion in limited fields. This used to be called the 'master–servant' relationship. The employer has some ability to vary the way work is done in accordance with business needs,[73] so long as it does not contradict a contract's express terms, which always require an employee's consent,^[74] or a collective agreement.^[75] The status of 'flexibility clauses', purporting to allow employers the discretion to vary any contract term, has been contested, as it will often enable abuse of power that the common law controls.^[76] The limits of the courts' tolerance for such practices are evident if they touch procedures for accessing justice,^[77] or potentially if they would contravene the duty of mutual trust and confidence.

Wages and tax

Since 1998, the United Kingdom has fixed a national minimum wage,[78] but collective bargaining is the main mechanism to achieve "a fair day's wage for a fair day's work". The Truck Acts were the earliest wage regulations,^[79] requiring workmen to be paid in money, and not kind. Today, the Employment Rights Act 1996 section 13 stipulates that employers can only dock employees' wages (e.g. for destroying stock) if the employee has consented to deductions in writing. This, however, does not cover industrial action,^[80] 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.^[81] From the Trade Boards Act 1909,^[82] the UK had set minimum wages according to the specific needs of different sectors of work. This eroded from 1986, and then repealed in 1993.^[83] One wages council that survived was the Agricultural Wages Board, established under the Agricultural Wages Act 1948. It was abolished in England in October 2013, though boards still operate for Scotland, Northern Ireland, and Wales.^[84]

effective aggregate demand for goods and services.^[85]

To bring the UK back into compliance with

Her Majesty's Revenue and Customs (HMRC).^[97] 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.^[98]

Unlike the rules for

universal credit), and the insolvency fund. While self-employed people generally pay the same income tax (albeit with more exemptions and deductions^[106]) they pay 9% in National Insurance contributions, while an employee pays 12%. In addition, the employee's employer makes a standard 13.8% contribution, while the "self-employed" person has no employer to make such a contribution. These disparities give a large incentive for employers to misrepresent true employment status with "sham self-employment".^[107]

Working time and child care

financial crisis of 2007–2008. Since Autoclenz Ltd v Belcher [2011] UKSC 41, zero hours clauses have been held to be ineffective, so that workers are legally entitled to a reasonable amount of work according to their usual patterns.^[108]

However, individual workers find common law rights difficult to enforce.

The

health and safety.^[113] 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.^[114]

People working at night may only work 8 hours in any 24-hour period on average, or simply 8 hours at most if the work is classified as "hazardous".

Landeshauptstadt Kiel v Jaegar^[122] that junior doctors' on call time was working time led a number of countries to exercise the same "opt out" derogation as the UK, but limited to medical practice. The Health and Safety Executive

is the UK body charged with enforcing the working time laws, but it has taken a "light touch" approach to enforcement.

Possibly the most important time off during working life will be to care for newly born or adopted children.

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.^[127] Second, and covering the compulsory leave, there is a right to 6 weeks' leave paid at 90% of ordinary earnings. Third, there is a right to 33 weeks' leave at the statutory rate, or 90% of ordinary earnings if this is lower, which was £138.18 per week in 2014.^[128] The government reimburses employers for the costs according to the employer's size and national insurance contributions.^[129] Fourth, the mother may take additional, but unpaid maternity leave for another 13 weeks.^[130] 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.^[131] 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.^[132] If parents adopt, then the rights to leave follow maternity rules for one primary carer.^[133] 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.^[134] Both parents may also take "parental leave".^[135] This means that, until a child turns 5, or a disabled child turns 18, parents can take up to 13 weeks unpaid leave.^[136] 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.^[137] Otherwise, employees have a right to suffer no detriment, nor be dismissed, and have the right to their previous jobs back.^[132] To redress the imbalance between women and men bearing children, the Additional Paternity Leave Regulations 2010^[138] made it possible for the woman to transfer up to 26 weeks of her maternity leave entitlements to her partner. This has not stopped the gender pay gap

.

In further specific situations, there are a jumble of other rights to leave spread across the Employment Rights Act 1996 sections 55 to 80I. "Emergency leave" is, under the Employment Rights Act 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, Cox J emphasised that there is no requirement to deliver daily updates.^[140] After Employment Act 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 Employment Rights Act 1996 section 80F, and despite the fact that employers may decline the request, employers grant requests in 80% 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,^[141] and within 8 grounds listed in section 80G, which generally concern business and organisational necessity. In Commotion Ltd v Rutty 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, Rutty should get compensation, which is set at a maximum of 8 weeks' pay.^[142] Finally, the Employment Rights Act 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

There are three "pillars" of the UK pension system, which aim to ensure dignity and a fair income in retirement.

company shares, bonds, real estate

or other financial products.

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

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, 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.^[162] 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]

Health and safety

Every employer must provide a "safe system of work". In the industrial revolution from 1802 the

codetermine health and safety matters with management. Health and safety regulations remain in line with the European-wide harmonised requirements of the Health and Safety Directive.^[166]

NHS

was founded

The most important protection for people's health has been the

Hewison v Meridian Shipping Services Pte Ltd Hewison concealed his epilepsy so that he could work offshore, and so 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.^[175]

proportionate basis, thus throwing the risk of employers' insolvency back onto workers.^[177] 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 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.^[178]

Privacy and free expression

Civil liberties at work, particularly the

GDPR personal data can only be processed by consent or law, fairly, transparently, with a legitimate purpose, kept secure, and no longer than needed.^[185] The law distinguishes between ordinary data, and 'sensitive' personal data, such as political opinions, union membership, or biometric data.^[186] There is a right to have any inaccurate data rectified, and erased if consent is withdrawn and there is no longer a lawful ground for it to be kept.^[187] All rights are backed by criminal offences and enforceable through complaints to the Information Commissioner.^[188]

The second main civil liberty in the workplace is the right to

ECHR article 11

, that protects workplace participation.

Workplace participation

collectively bargaining

.

While UK law creates a "charter protecting employees' rights" at work,

picketing. In these respects UK law falls below international labour standards.^[206] There are legal rights to information about workplace changes and consultation on redundancies, business restructuring and management generally. Finally, there are a small number of rights for direct participation in workplace and company affairs, particularly pension

management. In some enterprises, such as universities, staff can vote for representatives on boards that manage the enterprise.

Trade unions

In principle, UK law guarantees trade unions and their members

ECHR article 11, freedom of association can only be restricted by law as is "necessary in a democratic society". Traditional common law and equity was superficially similar, since unions form through contract, and the association's property is held on trust for its members according to the association's rules. However, before Parliament became democratic, unions were suppressed for allegedly being in "restraint of trade" and their actions (particularly strikes to improve conditions at work) could be regarded as criminal conspiracy.^[209] Nineteenth century reformers, who recognised that unions were democratic,^[210] gradually succeeded in guaranteeing unions' freedom of association. The Trade Union Act 1871 aimed to keep the courts away from unions' internal affairs, while the Trade Disputes Act 1906 finally confirmed the right of unions to take collective action, free from liability in tort, if it was "in contemplation or furtherance of a trade dispute". The basic philosophy of "legal abstention" from union organisation lasted until 1971 when the Conservative government attempted comprehensive regulation.^[211] This intervention was reversed by Labour in 1974,^[212]

but after 1979 unions became heavily regulated.

General Secretary of the Trades Union Congress, which is the umbrella grouping for trade unions in England and Wales

.

Today union governance can be configured in any manner, so long as it complies with the compulsory standards set by the

AB v CD, where the union's rules were silent on what would happen when an election was tied, the court referred to the Electoral Reform Society's guidance.^[222]

Beyond union governance through the vote and elections, members have five main statutory rights. First, although statute asserts that a union is "not a body corporate", in every practical sense it is: it can make contracts, commission torts, hold property, sue and be sued.

TULRCA 1992 sections 72, 73 and 82, a union must hold a separate fund for any "political object" (such as advertising, lobbying or donations), members must approve the fund by ballot at least every 10 years, and individual members have a right to opt-out of it (unlike shareholders in companies). Unions must also have political objects in the constitution.^[230] In 2010, just 29 from 162 unions had political funds, though 57 per cent of members contributed. This generated £22m.^[231]

Consolidated statistics on corporate political spending, by contrast, are not available.

postal ballots

among members.

Fourth, members must be treated fairly if they are disciplined by a union, in accordance with judicially developed principles of

ASLEF was entitled to expel Lee because, so long as it did not abuse its organisational power or lead to individual hardship, "unions must remain free to decide in accordance with union rules, questions concerning admission to and expulsion from the union."^[236] Lastly, union members also have the more dubious "right" to not strike in accordance with the decision of the executive.^[237] This precludes a union disciplining members who break solidarity,^[238] and has been criticised by the International Labour Organization for undermining a union's effectiveness, in breach of core labour standards.^[239]

Collective bargaining

The right of workers to collectively bargain with employers for a "

article 11,^[241] and in international law.^[242] Historically the UK had, however, left the procedure for making collective agreements, and their content, largely untouched by law.^[243] This began to change from 1971, though by contrast to other countries in the Commonwealth, Europe, or the United States the UK remains comparatively "voluntarist". In principle, it is always possible for an employer and a trade union to come voluntarily to any collective agreement. Employers and unions would usually aim to develop an annually updated wage scale for workers, fair and flexible working time, holidays and breaks, transparent and just procedures for hiring or dismissals, fair and jointly administered pensions, and a commitment to work together for the enterprise's success.^[244] In 2010, around 32 per cent of the UK workforce was covered by a collective agreement, leaving around two-thirds of the British workforce with little influence

over the terms of their work.

Traditionally, if workers organise a union, their last resort to get an employer to the bargaining table was to threaten collective action, including exercising their

National Labor Relations Act 1935, but because of its cumbersome nature it strongly encourages the parties to seek voluntary agreement in the spirit of cooperation and good faith

.

ECHR article 11.^[263]

Though most collective agreements will come about voluntarily, the law has sought to ensure that workers have true

ECHR article 11

because,

the essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests.... employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory.

In principle, like any victimisation case in discrimination law, 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment'.^[267] If the UK statutes are not updated, the Human Rights Act 1998 section 3 requires interpretation of the common law, or statute, to reflect ECHR principles. More specific legislation, with the Data Protection Act 1998 sections 17-19 and the Employment Relations Act 1999 (Blacklists) Regulations 2010, penalises a practice of recording or blacklisting union members, and potentially leads to criminal sanctions for employers and agencies who do so.^[268]

automatically enrolled in their union.^[269] A "closed shop" is unlawful,^[270] but with a right to opt out, unions can collectively agree that staff automatically become members.^[271]

Third, union members have a right to be represented by union officials in any disciplinary or grievance meeting under

fair share agreements, where non-union members contribute to union fees for the services they get for collective bargaining.^[276] Nor does it prevent collective agreements that would automatically enroll staff in the trade union, as happens under the Pensions Act 2008,^[277]

with the right for the worker to opt-out if they chose.

Collective and strike action

The right of workers to collectively withdraw their labour has always been used to make employers stick to a collective agreement.

EU Charter of Fundamental Rights article 28. However, the scope of the right to take collective action has been controversial. Reflecting a series of restrictions from 1979 to 1997, the law was partially codified in the Trade Union and Labour Relations (Consolidation) Act 1992

sections 219 to 246, which now falls below international standards.

TULRCA 1992 sets limits which have been found by the International Labour Organization

to violate international standards.

There is no consensus about the status of the right to strike at

TULRCA 1992 section 219 contains the classic formula,^[a]

that collective action by a trade union becomes immune from any liability in tort if done "in contemplation or furtherance of a trade dispute". This said, various further hurdles must be jumped for a union to be certain of immunity from employers suing for damages, or an injunction to stop a strike.

First, the meaning of a "trade dispute" under

ILO Convention 87 this is only for workplaces that involve the truly essential functions of the state (for armed forces, police,^[b] and prison officers^[309]^[c]), and only when impartial arbitration is used as an alternative.^[311]

Third, under

TULRCA 1992 section 226 a union wishing to take collective action for a trade dispute must conduct a ballot.^[312] In summary, the union must give 7 days notice to the employer about holding a ballot, state the categories of employees being balloted, give a total number, all "as accurate as is reasonably practicable in the light of the information".^[313] Since the Trade Union Act 2016, there is an additional requirement that a ballot has a 50% turnout for a strike to be supported, and a total of 40% of voters supporting a strike (i.e. an 80% turnout if the vote is evenly split) in "important public services" that include health services, schools, fire, transport, nuclear and border security.^[314] A scrutineer must be able to oversee the conduct, the vote must be given to all workers who could strike, the vote must be secret and by post, allowing for 'small accidental failures' which are 'unlikely to affect the result of the ballot'.^[315] The union must inform the employer of the result "as soon as reasonably practicable", call action within four weeks, and tell the employer of the people taking part.^[316] The rules are poorly drafted, and this has generated litigation where some courts allowed injunctions on ostensible technical glitches.^[317] However, the Court of Appeal since emphasised in British Airways Plc v Unite the Union (No 2)^[318] and RMT v Serco Ltd^[319] that the rules are to be interpreted consistently with the purpose of reconciling the equally legitimate, but conflicting interests of employers and unions.^[320] No employee can be dismissed for taking part in a strike for a period of 12 weeks,^[321] so long as the strike is officially endorsed by the union. However, if strikes are not conducted in accordance with law, employers can (and often do) go to court to seek an injunction against a union conducting the strike, or potentially damages.^[322] A court should not grant any injunction against a strike unless there is a 'serious question to be tried' and it must consider where the 'balance of convenience lies'.^[323] In The Nawala the House of Lords stressed that injunctions should be granted rarely and give 'full weight to all the practical realities' and the fact that a court should not end the strike in the employer's favour.^[324]

Information and consultation

While rights to take collective action, including strikes, are fundamental to

transfers of undertakings, and health and safety.^[332]

transnational work council.^[334]

First, the

EU law.^[346]

Second, the

EU. This is most likely for US multinational enterprises.^[347] In "community scale undertakings" or corporate "groups" with over 1000 employees, and 150 employees in two or more member states, employees have a right to a transnational work council to consult on any "probable trend of employment, investments, and substantial changes... introduction of new working methods or production processes... and collective redundancies."^[348] A "group" of undertakings exists when one undertaking has a "dominant influence" over another, for instance through company share ownership or rights to appoint or remove directors.^[349] Other features of transnational work councils are similar to the Information and Consultation of Employees Regulations 2004. Management can initiate a work council, or 100 employees in at least two undertakings and member states can make a request.^[350] Then, a "special negotiating body" (elected worker representative and management) will try to seek an agreement on the terms. If agreement cannot be reached, a template set of "subsidiary requirements" will form the work council's constitution.^[351] The rules have been criticised for not going further, or being integrated with other consultation laws,^[352]

although every member state in the EU is able to go beyond the minimum standards laid down.

Third, the

AEK ry v Fujitsu Siemens Computers Oy^[359] the Court of Justice held consulting must begin "once a strategic or commercial decision compelling him to contemplate or to plan for collective redundancies has been taken." In groups of companies, where a parent controls the subsidiary, the duty to perform the consulting process falls on the subsidiary, but the duty begins as soon as the parent has contemplated that a particular subsidiary "has been identified" for redundancies for consulting "to have any meaning".^[360] Consultation should take place with the recognised trade union first, but if there is none, then elected employee representatives, if necessary giving enough time to organise an election.^[361] Section 188(7) says that an employer has a "defence" for not consulting if there are "exceptional circumstances", but this "exception" is not in the Directive, and courts have avoided applying it.^[362] Dismissals cannot take effect until meaningful negotiation has taken place.^[363] If employers fail to negotiate, they must pay a "protective award" of up to 90 days' pay to each employee.^[364] Essentially similar rules apply for consultation with staff before any transfer of an undertaking.^[365]

Votes at work

Rights of staff to vote for governing boards and bodies in UK enterprises, whether corporations, partnerships or other statutory entities, have an established history in the UK.

European Company Statute, businesses that reincorporate as a Societas Europaea may opt to follow the Directive for employee involvement.^[370] 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.^[371]

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.

Universities in the UK are generally required to give staff members a right to vote for the board of managers at the head of corporate governance, such as in the Oxford University Act 1854,^[372] or the Cambridge University Act 1856.^[373]

In the 1977

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.^[376]

Another form of direct participation rights is for employees to exercise voting rights over specific workplace issues. The primary example is the
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.

Equality

Main article:
UK employment equality law

The Equality Act 2010 protects against discrimination on grounds of race, gender, belief, disability, age, and sexual orientation.

The
Equal pay claims between men and women have historically been separate in law, the rules are often less favourable, and do not tackle structural discrimination such as unequal parental leave and responsibility. Workers have a right to not suffer harassment
at work. Claimants may not be victimised for bringing a discrimination claim. The law requires employers to make reasonable adjustments to include disabled people at work. The law also allows positive action to include underrepresented groups if a candidate is equally qualified. If discrimination is proven, it is a statutory tort, and employers are vicariously and potentially personally liable.

Direct discrimination

equality law

See also: Workplace bullying and Harassment in the United Kingdom

City Hall, London
, promotes equality by intervening in discrimination cases, providing guidance and making investigations into workplace practices.

Direct discrimination is prohibited by the Equality Act 2010, and means treating a person less favourably than a comparable person, because of a "protected characteristic", such as sex, race, sexual orientation, disability or age.

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.^[391] An instruction by an employer to discriminate against customers or anyone else also violates the law.^[392]

Under

Sirdar v The Army Board & Secretary of State for Defence,^[397] 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.^[398] 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,^[399] 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. Direct age discrimination can be objectively justified more easily.

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^[402] 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,^[403]

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. Harassment and victimisation cannot be justified.

Indirect discrimination

"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.

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.

Equal Treatment Directive,^[409] 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

Tribunal. It is unclear what principle justifies the segregation of unequal pay claims based on sex, compared to all other protected characteristics.^[414]

UK

's gap was higher than average, at 18.3%.

Indirect discrimination may be "objectively justified" if a neutral practice puts a member of a group at a particular disadvantage. In most cases, this is based on business necessity.

age discrimination is open to justification on the same principles, on the basis that everyone will go through the ageing process.^[426] 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.^[427]

Disability and positive action

Because treating people equally is not by itself enough to achieve equality for everyone, the law requires that employers owe positive duties to disabled people to give preferential treatment.

O'Hanlon v Revenue and Customs Commissioners^[432]

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.

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 generally unlawful in the EU. This policy, however, leaves open the issue of historical disadvantage, and

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^[437] 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

Beyond the

Matthews v Kent and Medway Fire Authority,^[441] 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. In O'Brien v Ministry of Justice the Supreme Court also rejected that giving part-time judges no pension pro rata was unlawful, and had no objective justification. Although the Ministry argued that it was legitimate to save money, and to recruit quality full-time judges with a pension, Lord Hope and Lady Hale emphasised that budgetary considerations are not relevant, and it was necessary to recruit good part-time staff also.^[442] 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.^[443]

ILO director Guy Standing. He advocates a universal basic income to ensure security, funded through tax on wealth.^[444]

The

Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002^[445] 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".^[446] 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 Act which required fixed-term contracts be objectively justified after two years work, but gave no protection to workers beyond the age of 52, was unlawful.^[447] Likewise, the UK Regulations ban less favourable treatment of fixed-term staff without objective justification.^[448] Less generous than other countries, regulation 8 says if an employee has a succession of fixed term contracts lasting over 4 years, the employee is to be treated as having a permanent contract.^[449] 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.^[450]

Morecambe Bay licensing was reintroduced for some employment agencies in the Gangmasters (Licensing) Act 2004

.

The

Gangmasters Licensing Authority

, to enforce employment law in those areas.

Free movement and immigration

The right to move freely and work, within the British Isles, Europe, and the world, is basic human need, yet constrained, evolving and contested.

asylum seekers, there is not yet an international right to work. Immigration status is not itself a protected characteristic under the Equality Act 2010 although mistreatment could amount to indirect discrimination,^[462]

and itself creates a system of differential treatment by employers and the state.

The

Immigration Rules are so strict that an application is invalid (meaning people have overstayed leave) unless it meets all formal requirements, with the government having a discretion but no duty to accept corrections in 10 working days.^[466] The limit to this is the Home Office's duty of good administration, which the Supreme Court has held to include a requirement of flexibility, despite the 'high level of pedantry' required by the rules.^[467]

There are five main groups of work visa. First, the most common are the

British Nationals (Overseas)

, graduates, or 'global talent'. Fifth, there are 'Start-up' and 'Innovator' visas for those who can show they have a credible business plan.

Job security

The right to

EU law has introduced a requirement that employers consult on changes.^[475] 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. The UK government has in the past aimed to create "full employment

" however this goal has not necessarily translated into secure and stable work.

Wrongful dismissal

Wrongful dismissal refers to a termination of employment which contravenes a contract's terms, whether expressly agreed or implied by the courts.

Societe Generale, London Branch v Geys, the Supreme Court affirmed that a wrongful repudiation of a contract by the employer would not automatically terminate the agreement, because to do so would be to reward the wrongdoer. Only if an employee accepts the purported termination will the contract end. Until then the employer is liable for paying wages, and other terms of the contract, such as dismissal procedures, will survive.^[481]

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

Edwards v Chesterfield Royal Hospital,^[486] the Supreme Court held that an injunction is available to restrain breach of contract for the employer's failure to follow a doctor's contractual disciplinary procedure. This indicated that specific performance should always in principle be available, particularly in large organisations where people can be shifted to avoid personality conflicts.^[487]

The primary implied term of an employment contract that may be broken is

Donovan Report 1968

, and it launched the present system of unfair dismissal.

Unfair dismissal

While "wrongful" dismissal concerns breaches of the terms of an employment contract, "unfair" dismissal is a claim based on the

ERA 1996 section 203(1), statutory rights may not be excluded or limited, although section 203(2) and (3) still allows employers and employees to settle a legal claim, so long as the compromise agreement is made freely and with independent legal advice.^[501] It has also been held that an employee is not dismissed if the relationship is frustrated. In Notcutt v Universal Equipment Co (London) Ltd^[502] 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.^[503] The Supreme Court recently emphasised in Gisda Cyf v Barratt that the "need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental."^[504] This meant that when an employee claimed unfair dismissal, after accusations of allegedly inappropriate behaviour at a private party, the three-month time limit for her claim only began running when the employer had actually notified her. The general contract law principle that notifications take effect when arriving during business hours was not even "a preliminary guide" to the interpretation of the right to a fair dismissal.^[505]

Employment Tribunal

.

Once it is established that a dismissal took place, the employer must show that its reason for dismissing the employee was "fair". Dismissal on grounds of union membership,

conflicts of interest

in dismissal disputes.

While some courts have chosen to be more deferential to the employer's substantive reasons for dismissal,

Edwards v Chesterfield Royal Hospital that in principle an employee may secure an injunction to continue working while internal disciplinary procedures are followed.^[486] Particularly given the difficulty of finding alternative employment while removed from work, it is not clear why a staff member who retains the support of his or her colleagues (as opposed to a manager who potentially has a conflict of interest) should not also be able to continue working until a dismissal is confirmed by a court.^[524]

Redundancy

Redundancies are a special kind of dismissal, which attract specific regulation.

Lord Denning MR held they were not made "redundant" by their terms being changed, even worsened, 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." Apparently, they had simply left stopped working of their own accord. This view is controversial, because if the total wage bill spent by the employer is reduced, it would follow that demand for work (reflected in the employer's willingness to pay) must also be diminished. Thus, other courts have suggested the contract terms are irrelevant, and that the test should be purely based on the economic reality of diminished demand.^[529] Employers can also argue that a dismissal is for "some other substantial reason". In Hollister v National Farmers' Union^[530]

a farmer's refusal to accept decreased pension entitlements, after a consultation process, was said to be a "substantial" reason for dismissal. It is not clear whether worsening employees' contract terms, without their consent or collective approval, was envisaged by the Act as way to evade redundancy payments.

"... the
redundancy pay is to compensate a worker for loss of job, irrespective of whether that leads to any unemployment. It is to compensate him for the loss of security, possible loss of earnings and fringe benefits, and the uncertainty and anxiety
of change of job."

Second Reading, Ray Gunter, Hansard HC Deb (26 April 1965) vol 711, cols 33-160

Although workers could be redundant, the employer may still be liable for unfair dismissal by following an unfair procedure. The procedure the employer follows to select employees to make redundant must be procedurally fair. In

ERA 1996 section 141 an employee should accept a suitable offer for redeployment, and will lose entitlement to redundancy if the offer is declined. 'Suitable' means substantially similar in terms of status, wages and types of duties.^[534] For example, in Thomas Wragg & Sons Ltd v Wood the Employment Appeal Tribunal held that it was reasonable for Wood to refuse an alternative job offer the day before his termination took effect. He was therefore redundant.^[535] There is also, under section 138, a right to refuse an alternative job to which an employee is redeployed after a four-week trial period if it would be reasonable.^[536] However, redeployment remains an option for the employer that gives it greater scope to avoid redundancy payments. A right for the employee to be redeployed does not yet exist, except to the extent that the employer must consult about redeployment possibilities when more than 20 employees could be redundant.^[537]

Undertaking transfers and insolvency

See also:
UK insolvency law

UK labour law and business transfers

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.

Litster v Forth Dry Dock.^[542] 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.^[543] 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^[544] or withdraw tenure, or the employee will have a claim for constructive dismissal.^[545]

An acute question for the

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,^[546] 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.^[547] 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^[548] 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 will benefit when 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.^[549]

Often business transfers take place when a company has plunged into an

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".^[551] This includes pay, holiday pay, sick pay and occupational pension contributions, but has been held to not include compensation for unfair dismissal cases,^[552] wrongful dismissal,^[553] or protective awards for failure to consult the workforce before redundancies.^[554]

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, Companies Act 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

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.^[561] 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.^[562]

Together with minimum redundancy payments, the guarantees of wages form a meagre cushion which requires more of a systematic supplementation when people remain unemployed.

Full employment

One of the most important labour rights, on which all other labour rights rest, is the "right to work" and therefore to full employment "at fair wages" and with all the hours one needs.

under-employment and the longest cuts to workers' wages since the industrial revolution. This suggests a reluctance of the government to strengthen the incomes and bargaining power of workers if it could decrease the power of corporate capital.^[569]

'... my worry is as follows, that there may have been people making the actual policy decisions or people behind them or people behind them who never believed for a moment that this was the correct way to bring down inflation. They did however see that it would be a very, very good way to raise unemployment, and raising unemployment was an extremely desirable way of, of reducing the strength of the working classes, if you like. That what was engineered there – in Marxist terms – was a crisis of capitalism which re-created a reserve army of labour, and has allowed the capitalist to make high profits ever since. Now again, I'd not say I believe that story, but when I really worry about all this I worry whether indeed that was really what was going on.'

Alan Budd, Chief Economic Adviser to HM Treasury under Margaret Thatcher on Pandora's Box, Episode 3: The League of Gentlemen (Thursday, 18 June 1992) BBC2

Second, the UK government, particularly since it abandoned using investment and fiscal policy, has emphasised monetary policy. The

social security.^[571] Today under the Jobseekers Act 1995 a 'Jobseeker's Allowance' is payable for up to 182 days if someone has made contributions for over 2 years, but for people over 25 this was only up to £73.10 a week in 2019. Further, under the Welfare Reform Act 2012 sections 6-6J the Secretary of State can write rules to place conditions for work on people claiming jobseeker's allowance. In R (Reilly) v Secretary of State for Work and Pensions two claimants argued that requirements to work for free were ultra vires, and also amounted to forced labour. The Secretary of State lost on the ultra vires point, but the Supreme Court declined to hold that "workfare" amounted to forced labour.^[572] Nevertheless, it appears from the original conception of William Beveridge of a welfare state with Full Employment in a Free Society

.

Enforcement and tribunals

High Court for breach of contract.^[573]

UK labour law is enforced through three main methods: trade unions, the Tribunal and court system, and by government agencies. First, the most effective system of enforcement and creation of labour rights it through workers joining unions, and collectively bargaining. Whatever rights exist in law, employers routinely flout people's rights at work, particularly when the rights involve more complex standards of equality, job security and consultation. The desire to keep a cohesive workforce, and avoid the possibility of strike action, is the primary incentive for employers to negotiate in good faith with employee representatives, and ensure that there is a joint approach to upholding all workplace rights, such as pay, working time, safety, equal treatment and job security. Unions also advise and represent individual workers in grievances and disciplinaries and are protected by law in the conduct of all trade union activities.^[574]

Second, any worker can apply to an

Gangmasters Licensing Authority oversees enforcement of a limited number of employment agencies in food packing and shellfish industries, and the Employment Agency Standards Inspectorate

has a role for agencies.

International labour law

Since the

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.

WTO has been the target for calls by labour lawyers to incorporate global standards of the International Labour Organization

.

Because the ILO's enforcement and sanction mechanisms are weak, there has been significant discussion about incorporating

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."^[585] 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.^[586] 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.^[587] 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.^[588]

labour rights should not be undercut by a "race to the bottom", conflict of laws

principles allow workers to claim rights from the more favourable jurisdiction.

While the debate over labour standards applied by the ILO and the WTO seeks to balance standards with free movement of capital globally,

Brussels I Regulation articles 20 to 23,^[593] 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.^[594]

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

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

.

Notes

Conspiracy and Protection of Property Act 1875 and repeated in the Trade Disputes Act 1906
.

^ Police Act 1996 s 91^[306] (England and Wales), The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 article 9^[307] (Scotland), Police (Northern Ireland) Act 1998 s 68^[308] (Northern Ireland).

^ Anomalously, the Merchant Shipping Act 1995 s 59^[310] grants a further exception.

30 Geo. 3. c. 4), to prevent 'much danger' that 'may arise to the publick Tranquillity from the Resort and Residence of Aliens', section 1 stated masters of ships had to declare to customs officers the number and details of aliens on board. Sections 15-16, the Crown could order 'any alien' to depart the realm and if he refused, he could be arrested, detained, sentenced by a court to a month prison and removed. Aliens Restriction Act 1914
s 1(1)(k), SS could regulated governing entry, residence and deportation an 'any other matters which appear necessary or expedient with a view to the safety of the realm.' Aliens Order 1920 brought a system of work permits issued by the Ministry of Labour.

^ e.g. Master and Servant Act 1823, and see Ernest Jones, Democracy Vindicated (4 January 1867) 'In one year alone, 1864, the last return given, under the Master and Servants Act, 10,246 working men were imprisoned at the suit of their masters — not one master at the suit of the men!"

Citations

^ See Office for National Statistics, 'Labour market overview, UK: December 2021' (14 December 2021) and 'Average actual weekly hours of work for full-time workers (seasonally adjusted)' (14 December 2021). DBEIS, Trade Union Membership, UK 1995-2020: Statistical Bulletin (27 May 2021)

ERA 1996 s 244 and Trade Union and Labour Relations (Consolidation) Act 1992
s 301, but has mostly analogous provisions and falls under most of the other Acts and Regulations.

^ 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]

^ ^a ^b Gov, Uk (April 2023). "National Minimum Wage and National Living Wage rates".

NHS Act 2006 Sch 7, paras 3-9. E McGaughey, A Casebook on Labour Law (2019) ch 11, 'Votes at work' and E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel (2018) 47(1) Industrial Law Journal 76

^ See the Information and Consultation of Employees Regulations 2004 reg 20 and Junk v Kühnel (2005) C-188/03, [43]

^ See the Companies Act 2006 ss 110 ff

Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and Agency Workers Regulations 2010

ERA 1996
ss 86, 94 and 135. The qualification period is one month for one week's notice, and after two years, employees must have at least two weeks' notice, a fair reason and redundancy pay. The minimum level of notice and redundancy pay increases each year of employment.
^ See Autoclenz Ltd v Belcher [2011] UKSC 41, [35]

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 1. S Deakin, C Barnard, Z Adams, S Fraser-Butlin, Labour Law (Hart 2021) ch 1

^ (1772) 20 State Tr 1

penal servitude
, forced labour for prisoners, was abolished.

^ See Henry James Sumner Maine, Ancient Law (1861)

An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book I, ch 8, §12. Also JS Mill, Chapters on Socialism (1879) ch 1
, "No longer enslaved or made dependent by force of law, the great majority are so by force of poverty; they are still chained to a place, to an occupation, and to conformity with the will of an employer, and debarred, by the accident of birth both from the enjoyments, and from the mental and moral advantages, which others inherit without exertion and independently of desert. That this is an evil equal to almost any of those against which mankind have hitherto struggled, the poor are not wrong in believing."

^ See also, the Eleventh and Final Report of the Royal Commission on Trade Unions (1868-69); Employers and Workmen Act 1875.

^ [1892] AC 25

^ [1901] AC 426

Versailles Treaty, Part XIII

Versailles Treaty
1919, Part XIII and Art 427
^ 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

KD Ewing
, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1.

B Webb, Industrial Democracy
(Longmans 1902)

^ See Constantine v Imperial Hotels Ltd [1944] KB 693.

^ 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."

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."

^ 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.

^ With the notable exception of the leading case, Defrenne v Sabena (No 2) [1976] ECR 455 (C-43/75)

^ See also Redundancy Payments Act 1965 and the Employment Protection (Consolidation) Act 1978.

^ Alan Bullock, Report of the committee of inquiry on industrial democracy (1977) Cmnd 6706

^ Employment Act 1980 (trade union right to government funds for ballots, narrowed picketing 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), Trade Union and Labour Relations (Consolidation) Act 1992 (consolidated legislation hitherto), Trade Union Reform and Employment Rights Act 1993 (trade union duty to inform employers of upcoming strikes)

^ ^a ^b Gisda Cyf v Barratt [2010] UKSC 41

WTR 1998 regs 13–14; Pensions Act 2008 s 3; Equality Act 2010

^ Health and Safety at Work Act 1975 s 2; Employment Rights Act 1996 ss 1, 71–80I, 86, 94 and 135; Social Security Benefits and Contributions Act 1992 ss 1–2

^ See particularly Employment Rights Act 1996 s 230

Malik v BCCI SA
[1997] UKHL 23

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 3. S Deakin and G Morris, Labour Law (2012) ch 3

IRLR
137

O Kahn-Freund
, Labour and the Law (Hamlyn Lectures 1972)

^ Employment Relations Act 1999 s 23

^ Yewens v Noakes (1880) 6 QBD 530; R v Negus (1873) LR 2 CP 34

Stevenson, Jordan & Harrison v MacDonald & 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."

^ See National Insurance Act 1946 s 1(2)

MacKenna J
.

Montreal v Montreal Locomotive Works
[1947] 1 DLR 161, 169, per Lord Wright

^ Autoclenz Ltd v Belcher [2011] UKSC 41, [19] approving Nethermere and [37], quoting para [38] of Foxwell J, referring to "mutual obligations, namely the provision of work in return for money ..."

^ Nethermere (St Neots) Ltd v Gardiner [1984] IRLR 240, Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 217

^ O'Kelly v Trusthouse Forte plc [1983] ICR 730, [1983] IRLR 369 and James v Greenwich LBC. This appeared to misinterpret M Freedland, The Contract of Employment (1976) 21–22, first in Airfix Footwear Ltd v Cope [1978] ICR 1210

^ Autoclenz Ltd v Belcher [2011] UKSC 41, [17] approving Nethermere and [37] endorsing the consideration view.

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."

^ [2011] UKSC 41, [35]

^ cf Massey v Crown Life Insurance Company [1977] EWCA Civ 12

^ Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32

^ Pimlico Plumbers Ltd v Smith [2018] UKSC 29

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 4-5. S Deakin and G Morris, Labour Law (2012) ch 4

^ On the illegality principle, see Hounga v Allen [2014] UKSC 47

^ Gisda Cyf v Barratt [2010] UKSC 41, [39]

^ e.g. French v Barclays Bank plc [1998] IRLR 646

^ Harlow v Artemis International Corp Ltd [2008] EWHC 1126 (QB), [2008] IRLR 629

^ Trade Union and Labour Relations (Consolidation) Act 1992 s 179

^ Contrast Alexander and Wall v Standard Telephones & Cables Ltd (No 2) [1991] IRLR 287 and Kaur v MG Rover Group Ltd [2004] EWCA 1507

^ See Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10. Standardised terms are also called "terms implied in law" and individualised implied terms are also called "terms implied in fact".

Johnstone v Bloomsbury Health Authority
[1991] 2 All ER 293

^ Devonald v Rosser & Sons [1906] 2 KB 728

^ ^a ^b Scally v Southern Health and Social Services Board [1992] 1 AC 294

^ Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293

^ Wilson v Racher [1974] ICR 428

^ The Post Office v Roberts [1980] IRLR 347

^ Transco plc v O'Brien [2002] EWCA Civ 379

Mahmud and Malik v Bank of Credit and Commerce International SA
[1998] AC 20

^ Mallone v BPB Industries plc [2002] EWCA Civ 126

Johnstone v Bloomsbury Health Authority
[1991] 2 All ER 293

^ e.g. Cresswell v Board of Inland Revenue [1984] ICR 508

^ Rigby v Ferodo Ltd [1988] ICR 29

^ Robertson v British Gas Corp [1983] ICR 351

^ See Bateman v Asda Stores Ltd [2010] IRLR 370, per Silber J, but contrast Department for Transport v Sparks [2016] EWCA Civ 360 and Equitable Life Assurance Society v Hyman [2002] AC 408

^ Wandsworth London Borough Council v D'Silva [1998] IRLR 193

^ There are also proposals circulating moving towards setting principles resembling a "maximum wage"; see Financial Services Authority pay code Archived 6 August 2010 at the UK Government Web Archive. E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 6. S Deakin and G Morris, Labour Law (2012) ch 4

Statute of Labourers
fixed wages for the benefit of employers and feudal landlords.

^ Employment Rights Act 1996 s 14

^ Miles v Wakefield Metropolitan District Council [1987] UKHL 15, [1987] AC 539. See also, Wiluszynski v London Borough of Tower Hamlets [1989] ICR 439, but contrast Hartley v King Edward VI College [2017] UKSC 39.

^ See also S Webb, 'The Economic Theory of a Legal Minimum Wage' (1912) 20(10) Journal of Political Economy 973-998

^ See Trade Union Reform and Employment Relations Act 1993

^ Agricultural Sector (Wales) Bill - Reference by the Attorney General for England and Wales [2014] UKSC 43, holding the Welsh government could keep a wages board

^ 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

European Social Charter 1961 art 4, ILO Minimum Wage Fixing Convention No 131 (1970), European Community Charter of Fundamental Social Rights 1989
art 5

^ NMWA 1998 ss 1 and 54(3). Workers do not need to show "mutuality of obligation": James v Redcats (Brands) Ltd [2007] IRLR 296 (EAT). NMWA 1998 s 34 expressly including agency workers, though National Minimum Wage Regulations 1999 reg 12 excludes au pairs and family members in family business and reg 26 allows adults in the first 26 weeks of accredited training to be paid at a lower rate.

^ Edmonds v Lawson [2000] QB 501, saying a pupil did not work but merely had to be "conscientious in receiving instruction".

apprentices", and stood in 2014 at £2.73. "Minimum wage to rise by 15p"
. The Guardian. Press Association. 7 April 2011.

^ National Minimum Wage Regulations 2015 SI 2015/621

McCartney v Oversley House Management
[2006] IRLR 514 (EAT)

^ See Scottbridge Construction Ltd v Wright [2002] ScotCS 285, but then National Minimum Wage Regulations 2015 say that a worker given suitable sleeping facilities is not doing work when not awake for the purpose of working.

^ [2003] EWCA Civ 199, [2003] IRLR 469

SI 2009/1902 reg 5 removed an exception for tips paid through the payroll previously found in National Minimum Wage Regulations 1999
reg 31.

^ National Minimum Wage Act 1998 ss 17-18

^ National Minimum Wage Act 1998 ss 10 and 23-25

^ National Minimum Wage Act 1998 ss 14, 19 and 20. See also the Employment Act 2008

^ National Minimum Wage Act 1998 ss 11 and 21

^ See the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) rule 3.18

^ See the History of tax in the UK, dating back to the Income Tax Act 1803 to fund the Napoleonic Wars, repealed and then reintroduced by Robert Peel in the Income Tax Act 1842. See also the Beveridge Report, Social Insurance and Allied Services (1942) Cmd 6404

^ The Taxation of Chargeable Gains Act 1992, requires higher or additional rate payers to pay 28% tax on gains from residential property, and 20% on gains from other assets, when selling, or transferring the property.

^ Income Tax Act 2007 s 8 make the tax on dividends in 2019 for basic rate payers 7.5%, for higher rate payers 32.5%, and for additional rate payers 38.1%.

^ Corporation Tax Act 2010 sets a main rate of tax at 19%.

^ See the Income Tax (Earnings and Pensions) Act 2003 ss 48-61 and the leaflet IR35 on disguised employment. Also HMRC v PA Holdings [2011] EWCA Civ 1414.

European Social Charter 1961
s 2(1) on progressive reduction of the working week.

PAYE series, a P60 form from employers proves tax was paid at the end of the year, a P45 form is for 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
. Similar abbreviations for forms are used for self-assessment and tax credits, e.g. S100 and TC600.

^ See AL Bogg, 'Sham self-employment in the Supreme Court' (2012) 41 ILJ 328, Autoclenz Ltd v Belcher [2012] UKSC 41, and E McGaughey, 'Uber, the Taylor Review, Mutuality and the Duty Not to Misrepresent Employment Status' (2019) 48(2) ILJ 280

^ See Devonald v Rosser & Sons [1906] 2 KB 728, Pulse Healthcare Ltd v Carewatch Care Services Ltd (2012) UKEAT/0123/12/BA, and Borrer v Cardinal Security Ltd [2013] UKEAT 0416_12_1607. See also E. McGaughey, "Are Zero Hours Contracts Lawful?" (2014) SSRN

^ 2003/88/EC, replacing 93/104/EC. E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 7. S Deakin and G Morris, Labour Law (2012) ch 4

^ 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

^ Working Time Directive 2003 art 7 and Working Time Regulations 1998 regs 13-16. SI 2007/2079 reg 2 updated the period to 28 days, expressed often as 5.6 weeks, if one takes "week" to mean a five-day working week.

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.

^ Accordingly, the Working Time Directive 2003 was passed under the authority of Treaty on the Functioning of the European Union art 153(1)(a).

Schultz-Hoff v Deutsche Rentenversicherung Bund
[2009] UKHL 31, [2009] IRLR 214, also, C-520/06 and C-350/06.

^ Working Time Directive 2003 arts. 8-13 and Working Time Regulations 1998 rr. 2-7

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.

^ Working Time Regulations 1998 r 4(3)(b)

^ (2005) C-397/01, [2005] IRLR 137, referring to workers being the "weaker party" to a contract.

^ Working Time Directive 2003 art 22, Working Time Regulations 1998 regs 4-5

^ See Fuß v Stadt Halle [2010] IRLR 1080, reducing pay after requesting to move to reduced hours is victimisation.

SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana
(2000) C-303/98, [2000] ECR I-7963

^ (2003) C-151/02, [2003] ECR I-08389

^ Social Security Contributions and Benefits Act 1992 s. 167

^ 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.

^ 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".

^ 92/85/EEC

^ Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312) reg 8

^ 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.

^ Social Security Contributions and Benefits Act 1992 s 167

^ Employment Rights Act 1996 ss. 72-73 and Maternity and Parental Leave etc. Regulations 1999 rr. 7-8

^ Work and Families Act 2006 (c. 18) abolished the qualification period for ordinary and additional maternity leave.

^ ^a ^b Maternity and Parental Leave etc. Regulations 1999 rr. 17-20

^ Employment Rights Act 1996 ss. 75A-D and Paternity and Adoption Leave Regulations 2002 rr. 15-20

^ Paternity and Adoption Leave Regulations 2002 SI 2002/2788 r. 6. Employment Rights Act 1996 ss 80A-E. See also Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (SI 2002/2822)

Parental Leave Directive 2010/18/EU, replacing 96/34/EC

^ Employment Rights Act 1996 ss 76-80 and Maternity and Parental Leave Regulations 1999 regs 13-15

^ Maternity and Parental Leave etc. Regulations 1999 r. 16 and Sch. 2

^ Additional Paternity Leave Regulations 2010 (SI 2010/1055)

^ See "Gender Equality in Sweden" at sweden.se

^ [2003] IRLR 184 (EAT)

^ Employment Rights Act 1996 s 80H

^ [2006] IRLR 171 (EAT). See Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 r. 7 (SI 2002/3236)

^ Inserted by the Apprenticeships, Skills, Children and Learning Act 2009 s 40

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 6(4)

^ See Pension Schemes Act 1993 s 1 and the Social Security Contributions and Benefits Act 1992

^ Pensions Act 2008 ss 1, 13 and 88(3)

^ Pensions Act 2008 ss 3 and 16

^ See Pensions Act 2008 Sch 1

^ See I. Adams, "Fewer than half of Britons save for pension, says survey" (3 April 2010), The Guardian, p. 35

^ See further D Hayton, "Pension Trusts and Traditional Trusts: Drastically Different Species of Trusts" [2005] Conveyancer 229

Imperial Group Pension Trust v Imperial Tobacco Ltd
[1991] 1 WLR 589

^ 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

Goode Report
, Pension Law Reform (1993) Cm 2342

^ Pensions Act 2004 s. 243

Harries v The Church Commissioners for England
[1992] 1 WLR 1241

^ See Pensions Act 2008 and Pensions Act 2004 ss 241-243

Goode Report
, Pension Law Reform (1993) Cm 2342

^ Insolvency Act 1986 ss. 175, 386 and Sch. 6

^ On the scope of regulation, see Houldsworth v Bridge Trustees Ltd [2011] UKSC 42

^ Pensions Act 2004 ss 13-32

^ Pensions Act 1995 s 33

^ [2013] UKSC 52

^ Pension Schemes Act 1993, s. 163

^ Pensions Act 2004 ss. 173-174 and Sch. 7

^ Factories Act 1961

Health and Safety Directive 89/391/EEC

^ Before this, the National Insurance Act 1911, Part I created an employer-dependent system of health care, rather than a universal system.

^ Social Security Contributions and Benefits Act 1992 ss. 151; Gisda Cyf v Barratt 155

Franklin v South Eastern Railway (1858) 3 H&N 211 and Fatal Accidents Act 1976

^ See Turberville v Stampe (1697) 91 ER 1072 and Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215

^ See Morris v Ford Motor Co Ltd [1973] QB 792, 799 and Williams v Natural Life Health Foods Ltd [1998] UKHL 17

Priestly v Fowler (1837) 3 Mees & Wels 1, abolished in Wilsons & Clyde Coal Co Ltd v English
[1938] AC 57, 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".

^ This meant workers were assumed to voluntarily accept the dangers of their work by agreeing to their contracts of employment, 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. Only if an employee callously ignores clear directions of the employer will he be taken to have voluntarily assumed the risk, as in ICI Ltd v Shatwell [1965] AC 656 where an experienced quarry shotfirer said he "could not be bothered" to wait 10 minutes before setting off a detonation, and blew up his brother.

^ Now the court will only reduce damages by the amount the employee contributed to their own injury. See Law Reform (Contributory Negligence) Act 1945 s 1

^ [2002] EWCA Civ 1821

^ [2002] UKHL 22. See also McGhee v National Coal Board [1972] 3 All ER 1008

^ [2006] UKHL 20

^ [2012] EWCA Civ 525

^ Regulation of Investigatory Powers Act 2000 ss 1(3), 2(7)-(8) and Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 reg 3, including consent of both the sender and recipient, compliance with a legal obligation or national security.

^ [2017] ECHR 754, [80]. Contrast Lopez Ribalda v Spain [2020] IRLR 60, the ECHR rejecting that people's privacy rights were violated after they were caught stealing from a supermarket through covert security cameras. Surveillance was not used for any other purpose but for investigating theft.

^ [1997] IRLR 471

^ [1999] IRLR 734

^ [2007] ECHR 253

^ [2010] ECHR 1725

General Data Protection Regulation 2016 art 4(11) on the meaning of "consent". Art 5 on processing principles. Previously Data Protection Act 1998 s 13, compensation for injury or distress if an employer, without telling the person and stating its purpose, collects personal data. Cf. Smith v. Maryland, 442 U.S. 735
(1979).

GDPR 2016
art 9

GDPR 2016
arts 16-17

DPA 2018
ss 149 (enforcement notice), 155 (penalty notice), 165 (complaint to ICO)
^ e.g. Smith v Trafford Housing Trust [2012] EWHC 3321 (Ch), [2013] IRLR 86

^ (1996) 21 EHRR 205. See also Redfearn v United Kingdom [2012] ECHR 1878, holding a violation of ECHR article 11, but also "in light of" article 10, when a bus driver was dismissed for membership of the British National Party.

^ [2011] ECHR 1175

^ Inserted by the Public Interest Disclosure Act 1998

ERA 1996
s 43B

ERA 1996
s 43G

ECHR article 6 and R (Wright) v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267, but also Pay v United Kingdom
[2008] ECHR 1007, [2009] IRLR 139, probationer doing sado-masochistic videos was lawfully dismissed.

^ See ECHR Prot 1, art 1, right to property, but see Nerva v United Kingdom [1996] IRLR 461; (2003) 36 EHRR 4, [2002] IRLR 815, rejecting a claim that employers taking tips was a violation. This is now unlawful in the UK in any case.

^ The Representation of the People Act 1918 implemented universal suffrage, but only with the Representation of the People (Equal Franchise) Act 1928 did women have an equal voting age, and only with Representation of the People Act 1948 did voting become equal, regardless of university degree.

B Webb, The History of Trade Unionism (1920)Appendix VIII

^ Gisda Cyf v Barratt [2010] UKSC 41

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) chs 8-11. S Deakin and G Morris, Labour Law (2012) ch 7-11

^ cf Trade Union and Labour Relations (Consolidation) Act 1992 s 1

ERA 1996
ss 98 and 135

^ Morgan v Fry [1968] 2 QB 710, per Lord Denning MR

^ Conspiracy, and Protection of Property Act 1875 and Trade Disputes Act 1906

^ Trade Union and Labour Relations (Consolidation) Act 1992 s 219

ILO Right to Organise and Collective Bargaining Convention, 1949
No 98

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 8. S Deakin and G Morris, Labour Law (2012) ch 7

International Covenant on Civil and Political Rights 1966
art 22

^ R v Journeymen-Taylors of Cambridge (1721) 8 Mod 10, 88 ER 9, Hilton v Eckersley (1855) 6 El & Bl 47 and Hornby v Close (1867) LR 2 QB 153. See further JV Orth, Combination and conspiracy: a legal history of trade unionism, 1721-1906 (1992)

B Webb, Industrial Democracy (1920) chs 1 and 2

^ Industrial Relations Act 1971 s 14 and Sch 4

^ Trade Union and Labour Relations Act 1974

P Elias
, Trade Union Democracy, Members' Rights and the Law (Mansell 1987) ch 5, 139-151 and R Undy and R Martin, Ballots and Trade Union Democracy (1984) 58-59, finding 63 of 101 unions with direct elections, or 61% of total membership.

^ Department of Employment, Democracy in Trade Unions (1983) Cm 8778, ch 2, 3

^ Trade Union and Labour Relations (Consolidation) Act 1992 ss 47, 50-51

postal ballots
among members.

^ Brown v Amalgamated Union of Engineering Workers [1976] ICR 147

^ Trade Union and Labour Relations (Consolidation) Act 1992 ss 55-56

^ [1999] IRLR 166

^ [1971] 2 QB 175

Lord Hoffmann and Equitable Life Assurance Society v Hyman [2000] UKHL 39

^ [2001] IRLR 808

TULRCA 1992 ss 10 and 12. It is doubtful that executives or employees are jointly liable without a specific assumption of responsibility: see Williams v Natural Life Health Foods Ltd [1998] UKHL 17

TULRCA 1992
s 12
^ [1950] 2 All ER 1064

^ cf Foss v Harbottle (1843) 67 ER 189, which suggests that if no express rule is broken (e.g. there is an allegation of mismanagement by union officials) there is a preference for exhausting a union's internal dispute or decision-making procedures before litigation.

TULRCA 1992
ss 29-45A

^ See Amalgamated Society of Railway Servants v Osborne [1910] AC 87 (political donations ultra vires), Trade Union Act 1913 reversed Osborne. Trade Disputes and Trade Unions Act 1927 required union members opt into a political fund. Trade Disputes and Trade Unions Act 1946 changed the default, so there was a right to opt out, then regulated further by the Trade Union Act 1984.

asset managers
.

^ Paul v NALGO [1987] IRLR 413

^ Certification Officer, Annual Report 2010-11 (2011)

^ [1978] ICR 676

^ [1974] ICR 625

^ TUC, Disputes Principles and Procedures (2000)

^ [2007] ECHR 184

^ See also Cheall v APEX [1983] 2 AC 180, per Lord Diplock, 'freedom of association can only be mutual; there can be no right of an individual to associate with other individuals who are not willing to associate with him.'

TULRCA 1992
ss 62-65

^ See Knowles v Fire Brigades Union [1997] ICR 595

^ ILO Committee of Experts, 'Individual Observation Concerning Convention 87' (1989) 'provisions which deprive trade unions of the capacity to give effect to their democratically determined rules are, prima facie, not in conformity with this right. [TULRCA 1992 ss 64-65 on the right 'not to strike'] clearly has this effect, and on that basis is not in conformity with Article 3.' It should 'be possible to discipline members who refuse to participate in lawful strikes...'

^ Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2, [1942] AC 435

Demir and Baykara v Turkey [2008] ECHR 1345

^ ILO Freedom of Association and Protection of the Right to Organise Convention (1948) No 87 and ILO Right to Organise and Collective Bargaining Convention, 1949 C98

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 9. S Deakin and G Morris, Labour Law (2012) ch 8-9

^ See also Companies Act 2006 section 172.

KD Ewing
, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1

TULRCA 1992
s 219 ff

^ Introduced by the Employment Relations Act 1999

TULRCA 1992
, Sch A1, paras 6 and 7

TULRCA 1992
, Sch A1, para 35

^ [2005] EWCA Civ 1309

^ See the Central Arbitration Committee website

TULRCA 1992
, Sch A1, para 11-19

TULRCA 1992
, Sch A1, para 19B

^ Fullarton Computer Industries Ltd v Central Arbitration Committee [2001] Scot CS 168

^ [2002] EWCA Civ 512

TULRCA 1992
, Sch A1, para 22

TULRCA 1992
, Sch A1, para 22(4)

TULRCA 1992
, Sch A1, para 25 and 26

TULRCA 1992
, Sch A1, para 36

TULRCA 1992, Sch A1
, para 31-32

^ See further Gallagher v Post Office [1970] 3 All ER 712 and New Century Cleaning Co Ltd v Church [2000] IRLR 27

^ Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2 and RMT v Serco; ASLEF v London & Birmingham Railway [2011] EWCA Civ 226

Demir and Baykara v Turkey [2008] ECHR 1345

^ e.g. Harrison v Kent County Council [1995] ICR 434 (EAT) per Mummery J, holding refusal of employment for someone having ostensibly 'an uncooperative attitude and anti-management style' was simply a code for union organising, and thus unlawful.

^ [1992] ICR 221

^ [2002] ECHR 552

TULRCA 1992
s 146.

^ Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493)

T Piketty, Capital in the Twenty-First Century (2014) Technical Appendices, Table S9.2

^ Young, James and Webster v United Kingdom [1981] ECHR 4 and Employment Act 1990

^ cf Pensions Act 2008 ss 3 and 8

TULRCA 1992 s 168

TULRCA 1992 s 170. This was held not to cover political protest activities, see Luce v Bexley LBC
[1990] ICR 591 (EAT)

^ Revised ACAS Code of Practice 3, Time off for trade union duties and activities (2010) acas.org.uk

^ Young, James and Webster v United Kingdom [1981] ECHR 4

TULRCA 1992
s 146(3)

^ Pensions Act 2008 ss 3 and 8

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 10. S Deakin and G Morris, Labour Law (2012) ch 11

^ e.g. Certification of the Constitution of the Republic of South Africa [1996] ZACC 26, [66], confirming the right to strike as more important than a right to lock-out.

Lord Bramwell referring to the Trade Union Act 1871

^ B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441

RMT v UK [2014] ECHR 366

Lord Bramwell

^ Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, 463

Lord Denning MR

London Underground Ltd v RMT
[1996] ICR 170

P Elias
, 'The Strike and Breach of Contract: A Reassessment' in KD Ewing, CA Gearty and BA Hepple, Human Rights and Labour Law (1994) ch 11

^ See Taff Vale Rly Co v Amalgamated Society of Rly Servants [1901] UKHL 1, Quinn v Leathem [1901] UKHL 2 and South Wales Miners' Federation v Glamorgan Coal Co [1905] AC 239, reversed by the Trade Disputes Act 1906.

^ e.g. Rookes v Barnard [1964] UKHL 1 and Metrobus Ltd v Unite [2009] EWCA Civ 2009

^ e.g. R v Mawbey (1796) 6 Term Rep 619, 101 ER 736, cf Timeplan Education Group Ltd v NUT [1997] IRLR 457

^ Lumley v Gye (1853) 2 E&B 216

^ Tarleton v McGawley (1793) 1 Peake 270, 170 ER 153

^ Tony Blair, 'We won't look back to the 1970s' (31 March 1997) The Times, 'The essential elements of the trade union legislation of the 1980s will remain. There will be no return to secondary action, flying pickets, strikes without ballots, the closed shop and all the rest. The changes that we do propose would leave British law the most restrictive on trade unions in the Western world. The scenes from Wapping, Grunwick or the miners' strike could no more happen under our proposals than under the existing laws.'

A Manifesto for Labour Law: towards a comprehensive revision of workers' rights (Institute of Employment Rights, 2016) 1 and 70, reviewed in (2017) 46(1) Industrial Law Journal 169
.

^ [1977] ICR 686

^ Express Newspapers Ltd v Keys [1980] IRLR 247

^ Mercury Communications Ltd v Scott-Garner [1984] ICR 74

ECHR article 11 challenge in Unison v United Kingdom
[2002] IRLR 497

^ In re P (a minor) [2003] UKHL 8, [4]

TULRCA 1992 s 224(2)

General Strike
.
^ Trade Disputes and Trade Unions Act 1946 until, following Express Newspapers ltd v MacShane [1980] ICR 42 and the Employment Act 1980. It was then said in Department of Employment, Trade Union Immunities (1981) Cm 8128, para 149, that a total ban 'could tilt the balance of power unacceptably to the benefit of employers'. The present provisions were enacted in the Employment Act 1990

ECHR article 11, albeit without discussion of the inequality of bargaining power that is inherent when employees exercise freedom of association, including who the employer purports to make the contract with. cf Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4

^ See further J Prassl, The Concept of the Employer (2015) and cf Duport Steel Ltd v Sirs [1980] ICR 161

TULRCA 1992 ss 220-220A. See also R (Laporte) v Chief Constable of Gloucestershire
[2006] UKHL 55, [47].

^ "Police Act 1996: Section 91", legislation.gov.uk, The National Archives, 22 May 1996, 1996 c. 16 (s. 91), retrieved 26 December 2023

^ "The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013: Article 9", legislation.gov.uk, The National Archives, 12 March 2013, SI 2013/602 (art. 9), retrieved 26 December 2013

^ "Police (Northern Ireland) Act 1998: Section 68", legislation.gov.uk, The National Archives, 24 July 1998, 1998 c. 32 (s. 68), retrieved 26 December 2023

^ Criminal Justice and Public Order Act 1994 ss 127-8. See further POA v United Kingdom [2013] ECHR 600 and Hrvatski Liječnički sindikat v Croatia [2014] ECHR 1417

^ "Merchant Shipping Act 1995: Section 59", legislation.gov.uk, The National Archives, 19 July 1995, 1995 c. 21 (s. 59), retrieved 26 December 2023

ILO Convention No 87, art 6. Civil Contingencies Act 2004
s 23(3)(b) requires that emergency powers cannot limit the right to strike.

^ Lord Donovan, Royal Commission on Trade Unions and Employers' Associations (1968) Cmnd 3623 rejected a need for ballots, but Department of Employment, Democracy in Trade Unions (1983) Cm 8778 led to their introduction in the Trade Union Act 1984

TULRCA 1992
s 226A

TULRCA 1992
s 226(2)(a)(iia) and (2E).

TULRCA 1992
s 226B-232B

TULRCA 1992
s 231-234A

^ Network Rail Infrastructure Ltd v NURMT [2010] EWHC 1084 (QB), EDF Energy Powerlink Ltd v NURMT [2009] EWHC 2852 QB, British Airways Plc v Unite the Union [2009] EWHC 3541

^ [2010] EWCA Civ 669

^ [2011] EWCA Civ 226

^ See RMT v Serco Ltd [2011] EWCA Civ 226, [9] per Elias LJ

TULRCA 1992
s 238A

TULRCA 1992
ss 20-21 on damages.

^ American Cyanamid Co v Ethicon Ltd [1975] AC 396

^ [1979] 1 WLR 1294

A McColgan
, Labour Law (2012) ch 15, 593-655

RH Thaler, 'Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias' (1991) 5(1) Journal of Economic Perspectives 193, 198 and discussed in E McGaughey, 'Behavioural Economics and Labour Law' (2015) LSE Law, Society and Economy Working Papers 20/2014
, 20-24

EPA 1975
ss 17 and 19
^ Companies Act 2006, ss 172(1)(b)-(c) and 417(2), which states this information's purpose is "to inform members of the company and help them assess how the directors have performed their duty under section 172 (duty to promote the success of the company)." Any party registered as a company member can enforce this duty.

KD Ewing
, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1.

Community Charter on the Fundamental Social Rights of Workers 1989
arts 17 and 18

^ Association de médiation sociale v Union locale des syndicats CGT (2014) C‑176/12, [2014] IRLR 310

Health and Safety Directive
89/391/EC art 11

Information and Consultation of Employees Directive 2002/14/EC
.

EWCD 2009
Annex para 2
Information and Consultation of Employees Directive 2002/14/EC

Part-Time Workers Directive
', Collins, Ewing and McColgan (2012) 626

ICED 2002
art 4(2)

ICED 2002
arts 4-5. Theoretically, employees can agree to lower standards, but will rarely have an incentive to do so.

ICED 2002
art 4(4)(e)
^ Junk v Kühnel (2005) C-188/03, [43] the Collective Redundancies Directive 1998 'imposes an obligation to negotiate'.

National Labor Relations Act 1935 §8(d) duty to 'meet at reasonable times, and confer in good faith with respect to wages, hours, and other terms and conditions of employment'. NLRB v Borg-Warner Corp, 356 U.S. 342
(1958) at 349, 'The duty is limited to those subjects and within that area neither party is legally obligated to yield... As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree.'

ICER 2004
reg 7

ICER 2004
reg 8, with reg 8(6) adding that turnout must be high enough so that 40 per cent of total staff favour a new procedure.
^ [2006] IRLR 592, [2006] ICR 1253 (EAT)

ICER 2004
reg 23

CFREU
art 47

^ Collins, Ewing and McColgan (2012) 605

TICER 1999
Sch, para 7

EWCD 2009
art 3

EWCD 2009
art 5

EWCD 2009
Annex

^ e.g. S Laulom, 'The Flawed Revision of the European Works Council Directive (2010) 39(2) Industrial Law Journal 202

Collective Redundancies Directive 98/59/EC
. For over 100 redundancies, the time is 45 days, reduced from 90 days by the Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013/763 art 3.

TULRCA 1992
s 195
^ [2015] UKSC 26

^ (2015) C-182/13, [52]

^ [1984] IRLR 135 (EAT)

CRD 1998
art 2(1)

^ (2009) C-44/08, [48]

^ (2009) C-44/08, [63]-[65]

TULRCA 1992
s 188(1B)-188A

^ e.g. Clark's of Hove v Baker's Union [1978] ICR 1076

^ Junk v Kühnel (2005) C-188/03, [41]-[43] "the directive imposes an obligation to negotiate".

TULRCA 1992
ss 189-196

Royal Mail Group Ltd v CWU [2009] EWCA Civ 1045

^ E McGaughey, A Casebook on Labour Law (2019) ch 11, 'Votes at work'. E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel' (2016) 47(1) Industrial Law Journal 76

^ e.g. Oxford University Act 1854 ss 16 and 21, Cambridge University Act 1856 ss 5 and 12. Also the Further and Higher Education Act 1992, ss 20(2) and 85, and Sch 4, para 4. National Health Service Act 2006 Sch 7.

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

Betriebsverfassungsgesetz
1972 §87. Member states with no participation rights are Belgium, Cyprus, Estonia, Italy, Latvia, Lithuania, Romania and the United Kingdom.
Employee Involvement Directive 2001/86/EC

PL Davies, 'Workers on the Board of the European Company?' (2003) 32(2) Industrial Law Journal 75

^ Oxford University Act 1854 ss 16 and 21

^ Cambridge University Act 1856 ss 5 and 12; cf King's College London Act 1997 s 15, though since amended.

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.

^ 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 Companies Act 1985, section 309, requiring directors to act in shareholders and employees' interests, now reflected in Companies Act 2006, s 172

^ 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

^ E McGaughey, A Casebook on Labour Law (Hart 2019 ch 12-14. S Deakin and G Morris, Labour Law (2012) ch 6

^ Constantine v Imperial Hotels Ltd [1944] KB 693

Equal Treatment Directive 2006/54/EC
, for gender.

Wilson v United Kingdom
[2002] ECHR 552

EA 2010
ss 4-14, 16, 18

AWR 2010

Lord Denning MR
(overturned on appeal).

age discrimination
may always be objectively justified, as with discrimination against part-time, fixed term or agency workers.

EA 2010
s 13
^ See James v Eastleigh BC [1990] 2 AC 751. R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 WLR 1, characteristic must simply be the reason

^ [2003] UKHL 11, [2003] ICR 337

^ See also, Ladele v London Borough of Islington [2009] EWCA Civ 1357, [39]

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

^ (2008) C-303/06, [2008] IRLR 722

^ [2008] EWCA Civ 1421

^ See Showboat Entertainment Centre v Owens [1984] ICR 65, (EAT)

Equality Framework Directive
2000/78/EC art 4

^ [1989] IRLR 150

^ (2010) C-229/08

^ Contrast the stricter approach to policing, Johnston v Chief Constable of the Royal Ulster Constabulary (1986) C-222/84, [1986] 5 ECR 1651

^ (1999) C-273/97, [1999] ECR I-7403

^ 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

^ R (Amicus) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin), [2004] IRLR 430

EA 2010
s 40(2) and (3)

^ [2006] UKHL 34, [2006] ICR 1199

^ [2007] UKHL 16, [2007] ICR 841

^ [2001] ICR 1065

EA 2010
s 19

Ladele v Islington BC [2009] EWCA Civ 1357
, [60], per Lord Neuberger MR

Eweida v British Airways plc [2010] EWCA Civ 80
, [37], per Sedley LJ.

^ (1986) C-170/84, [1986] ECR 1607

^ (1999) C-167/97, [2000] UKHL 12

^ 2006/54/EC

EA 2010
ss 70-71 exclude the application of ss 39, 49-50, but not for direct discrimination in ss 13-14

Civil Rights Act 1964 by amending the Fair Labor Standards Act of 1938
.

Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH & Co KG
[1989] ECR 2743 (C-171/88)
^ See Defrenne v Sabena (No 2) [1976] ECR 455 (C-43/75)

^ See further S Deakin and G Morris, Labour Law (6th edn 2012) 696-7

Civil Rights Act 1964
.

^ 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.

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 woman 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.

^ 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.

^ [1978] 1 WLR 1429, [1978] IRLR 361

^ [1987] IRLR 26

^ cf Allonby

^ (1992) C-127/92

^ [1998] 1 WLR 259

^ Redcar and Cleveland BC v Bainbridge [2007] EWCA Civ 929, [2008] ICR 238

^ Allen v GMB [2008] EWCA Civ 810, [2008] IRLR 690

Kutz-Bauer and Kücükdeveci v Swedex GmbH & Co KG
(2010) C-555/07, [2010] IRLR 346.

^ 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

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 14. S Deakin and G Morris, Labour Law (2012) ch 6

^ (2006) C-13/05, [2006] IRLR 706

^ Equality Act 2010 (Disability) Regulations 2010 regs 3-8 list various exclusions, such as nicotine or alcohol addiction, or a propensity to start fires.

^ [2004] UKHL 32

^ [2007] EWCA Civ 283

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.

^ 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.

^ (1996) C-409/95, [1996] ICR 45

^ (2000) C-407/98, [2000] ECR I-05539

^ (2000) C-158/97, [2001] 2 CMLR 6

Temporary and Agency Work Directive
2008/104/EC

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 15. S Deakin and G Morris, Labour Law (2012) ch 6

^ SI 2000/1551

^ [2006] UKHL 8

^ [2013] UKSC 6

^ See A McColgan, 'Missing The Point?' (2000) 29 ILJ 260, 267

^ G Standing, The Precariat – The new dangerous class (2011)

^ SI 2002/2034

A McColgan
, 'The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002: Fiddling While Rome Burns?' [2003] 32 ILJ 194

^ Mangold v Helm (2005) C-144/04

FTER 2002
regs 3-5

^ See Adeneler v Ellinikos Organismos Galaktos (2006) C-212/04, [2006] IRLR 716, Grand Chamber holding objective justification for use of fixed-term contracts mean showing a genuine need, and measures employed are proportionate to that aim. Twenty days was too little to break continuity.

ERA 1996 s 235 and Ford v Warwickshire CC
[1983] ICR 273

^ e.g. Transco plc v O'Brien [2002] EWCA Civ 379

^ 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

^ [2011] UKSC 41

^ cf Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 21 and James v Greenwich LBC [2008] EWCA Civ 35

^ SI 2003/3319

Magna Carta 1215
art XLI, 'All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us.'

Calvin's case (1608) 77 ER 377, holding all persons born in the Crown's dominions were subjects. Children born to subjects outside Dominions acquired the same status. Everyone else was an alien. Commonwealth Immigrants Act 1962 introduced a work permit scheme, and Commonwealth Immigrants Act 1968

^ Treaty on the Functioning of the European Union art 45

^ BL Abrahams, 'Expulsion of the Jews from England in 1290' (1894) 7(1) Jewish Quarterly Review 75.

4 & 5 Ph. & M.
c. 6 (French non-denizens expelled).

Universal Declaration of Human Rights 1948 art 13

^ c.f. Taiwo v Olaigbe [2016] UKSC 31, on the facts holding that shocking treatment of a vulnerable person on a domestic work visa was not race (and nationality) discrimination (direct or indirect), as the mistreatment occurred solely due to migration status. The claimant succeeded in other claims such as for unlawful wage deductions, violation of break times.

^ Previously implemented through the Immigration (European Economic Area) Regulations 2006.

^ Immigration Act 1971 ss 1(3) and 3ZA, 'An Irish citizen does not require leave to enter or remain in the United Kingdom, unless subsection (2), (3) or (4) applies to that citizen' namely deportation, someone deemed by the Secretary of State as not conducive to the public good, or someone excluded. Sch 4 gives effect to immigration laws of the Islands.

^ Immigration Act 1971 s 3C

^ Immigration Rules paras 34A-B and 245AA. See also Pokhryal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [4] Jackson LJ, 'The rules governing the PBS... have now achieved a degree of complexity which even the Byzantine Emperors would have envied'.

^ Mandalia v Secretary of State for the Home Department [2015] UKSC 59

^ Also Overseas Domestic Worker visa, Representative of an Overseas Business visa and Service providers from Switzerland visa.

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 16-19. S Deakin and G Morris, Labour Law (2012) ch 5

^ See H Collins, 'Market Power, Bureaucratic Power, and the Contract of Employment' (1986) 15 Industrial Law Journal 1

ILO Termination of Employment Convention, 1982 C 158
requires a "valid reason" for terminations, with "reasonable notice" and "severance pay", and the termination must be able to be appealed to an impartial authority. Virtually every developed country, except the United States, goes far beyond this low standard.

^ Employment Rights Act 1996 s 86

ERA 1996
s 94

ERA 1996
s 135.

TULRCA 1992 ss 188-192

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 17-18. S Deakin and G Morris, Labour Law (2012) ch 5

^ Gisda Cyf v Barratt [2010] UKSC 41. See also Locke v Candy & Candy Ltd [2010] EWCA Civ 1350 and 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.

^ (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

^ Nokes v Doncaster Collieries Ltd [1940] AC 1014

Gunton v Richmond-Upon Thames LBC
[1980] ICR 755

^ [2012] UKSC 63

^ [1974] ICR 428, 430

^ 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.

^ [1974] ICR 428

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

^ ^a ^b [2011] UKSC 58

Hill v CA Parsons & Co Ltd
[1972] Ch 305, where an employee won reinstatement, since the real conflict was with a union attempting to enforce the closed shop rather than the employer.

^ [2003] 1 AC 518

^ Unfair Dismissal Compensatory Awards: Final impact assessment (2013)

^ [2004] UKHL 35, [2004] IRLR 732

^ 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.

^ 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.

^ 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.

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 18. S Deakin and G Morris, Labour Law (2012) ch 5

Second Reading, Hansard HC Deb (14 December 1970) vol 808 cols 961-1076 and Hansard HC Deb (15 December 1970) vol 808 cols 1126-247 and Third Reading, Hansard HC Deb 24 March 1971 vol 814 cols 547-706

R (Seymour-Smith) v Secretary of State for Employment [2000] UKHL 12 and (1999) C-167/97

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.
^ [1992] ICR 183

^ [1978] ICR 221

^ See also Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693

^ cf Igbo v Johnson, Matthey Chemicals Ltd [1986] ICR 505 (CA) and Logan Salton v Durham CC [1989] IRLR 99, decided before the statutory enactment of s 203(3)

^ [1986] ICR 414

KD Ewing
and A McColgan, Labour Law: Cases and Materials (Hart 2005) 492

^ [2010] UKSC 41

^ [2010] UKSC 41, [37]

Betriebsverfassungsgesetz
§87

Wilson v United Kingdom [2002] ECHR 552

^ 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.

^ See Iceland Frozen Foods Ltd v Jones [1983] ICR 17, per Browne-Wilkinson J

^ cf Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 in English tort law. See S Deakin and G Morris, Labour Law (5th edn 2009) 446

^ See H Collins, KD Ewing and A McColgan, Labour Law: Law in Context (CUP 2012) 833

ECHR article 8
, if it were engaged.

^ [2000] ICR 1283

^ 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.

^ [2011] EWCA Civ 63

^ cf Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, Longmore LJ, 'the employer cannot be the final arbiter of its own conduct in dismissing an employee.'

^ West Midlands Co-op v Tipton [1986] AC 536, [1986] ICR 192

^ [1987] UKHL 8

^ For an example of the operation of Employment Act 2002, which if not followed let to an automatic finding of unfair dismissal, see Cartwright v King's College, London [2010] EWCA Civ 1146

TULRCA 1992 s 207A and Sch A2, inserted by Employment Act 2008
s 3

^ Norton Tool Co Ltd v Tewson [1972] EW Misc 1

^ Unfair Dismissal Compensatory Awards: Final impact assessment (2013). It was £4903 in 2009–2010. See Ministry of Justice, Employment Tribunal and EAT statistics 2009-10 Archived 15 September 2011 at the Wayback Machine (3 September 2010)

^ P Lewis, 'An Analysis of Why Legislation Has Failed to Provide Employment Protection for Unfairly Dismissed Workers' (1981) 19 British Journal of Industrial Relations 316

Societe Generale, London Branch v Geys [2012] UKSC 63
, the Supreme Court confirmed that an employment relationship does not terminate until the employee accepts an employer's repudiation.

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 19. S Deakin and G Morris, Labour Law (2012) ch 5

^ See Hansard HC Deb (26 April 1965) vol 711, cols 33-160, Second Reading of the Bill, Ray Gunter

^ Murray v Foyle Meats Ltd [1999] UKHL 30

^ [1977] ICR 235

^ Safeway Stores plc v Burrell [1997] ICR 523

^ [1979] ICR 542

^ [1982] ICR 156

^ British Aerospace plc v Green [1995] EWCA Civ 26, refusal to disclose assessment forms was legitimate in absence of any specific allegations.

^ [2009] EWCA Civ 387

^ Taylor v Kent CC [1969] 2 QB 560

^ [1976] ICR 313

^ Optical Express Ltd v Williams [2007] IRLR 936

Collective Redundancies Directive
98/59/EC art 2

^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 19. S Deakin and G Morris, Labour Law (2012) ch 3

^ [1940] AC 1014

^ 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.

TUD 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".

^ [1988] UKHL 10, [1989] ICR 341

^ Wilson v St Helens BC and British Fuels Ltd v Baxendale [1998] UKHL 37, [1999] 2 AC 52

^ Credit Suisse First Boston (Europe) Ltd v Lister [1999] ICR 794

^ University of Oxford v Humphreys [2000] IRLR 183

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

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)

^ (2001) C-172/99, [2001] IRLR 171

RCO Support Services v Unison [2002] EWCA Civ 464

^ 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

IA 1986
s 19 and Sch B1 para 99

^ Re Allders Department Stores Ltd [2005] BCC 289

^ Leeds United AFC Ltd [2008] BCC 11

^ Krasner v McMath [2005] EWCA Civ 1072, [2005] IRLR 995

IA 1986
ss 176ZA, 175, 176A, 386, Sch 6, s 74(2)

^ Insolvency Proceedings (Monetary Limits) Order 1986 (SI 1986/1996)

^ See Salomon v A Salomon & Co Ltd [1897] AC 22 and the Preferential Payments in Bankruptcy Amendment Act 1897 s 2

^ ILO Convention No 173 (1992)

^ 2008/94/EC, replacing 80/987/EC and 2002/74/EC

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.

^ 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

^ See Robins v Secretary of State for Work and Pensions (2007) C-278/05, [2007] ICR 779, held that 20% insurance was not enough.

^ See W Beveridge, Full Employment in a Free Society (1944) and E McGaughey, A Casebook on Labour Law (Hart 2019) ch 16

International Covenant on Economic, Social and Cultural Rights 1966
article 6 recognises 'right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts'. The International Labour Organisation, the Employment Policy Convention 1964 (c 122) article 1 says states should 'declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment.'

^ White Paper, Employment Policy (May 1944) Cmd 6527

^ RCO Matthews, 'Why has Britain had full employment since the war?' (1968) 78(311) Economic Journal 555 suggests there was no massive "Keynesian" spending to maintain full employment. cf JM Keynes, The General Theory of Employment, Interest and Money (1936).

^ cf A W Phillips (1958) 'The Relation between Unemployment and the Rate of Change of Money Wage Rates in the United Kingdom, 1861–1957' (1958) Economica. This was taken by M Friedman, 'The Role of Monetary Policy' (1968) 58(1) American Economic Review 1 to be evidence that fuller employment raises all inflation rather than just wages as Phillips had demonstrated. FA Hayek, 'Full employment, planning and inflation' (1950) 4(6) Institute of Public Affairs Review 174 argued for the same concept, without evidence.

^ Y Li, 'The Fed chairman says the relationship between inflation and unemployment is gone' (11 July 2019) CNBC

^ See M Kalecki, 'Political Aspects of Full Employment' (1943) 14(4) Political Quarterly 347 and S Webb, How the Government Can Prevent Unemployment (1912). Contrast EU soft laws in Economic Policies Recommendation (EU) 2015/1184 and the Employment Decision 2015/1848.

^ See the Poor Law Amendment Act 1834 and Royal Commission into the Operation of the Poor Laws 1832 and the National Insurance Act 1911 and National Insurance Act 1946

International Covenant on Economic, Social and Cultural Rights 1966
article 9, 'the right of everyone to social security, including social insurance.'

^ [2013] UKSC 68

^ Chhabra v West London Mental Health NHS Trust [2013] UKSC 80

TULRCA 1992
ss 146-151

^ [2017] UKSC 51, reversing the Employment Tribunals (Increase of Maximum Deposit) Order 2012/149 art 2, increasing tribunal fees to £1000 under ETA 1996 s 9(2)(a)

^ Enterprise and Regulatory Reform Act 2013 ss 7-24, amending the ETA 1996 to require mandatory pre-hearing conciliation. Employment Rights (Dispute Resolution) Act 1998, enabling ACAS to create arbitration hearings as an alternative dispute resolution mechanism to the employment tribunals.

^ Steer v Stormsure Ltd [2021] EWCA Civ 887

^ Chhabra v West London Mental Health NHS Trust [2013] UKSC 80

^ See C O'Cinneide, 'The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times' (2007) Industrial Law Journal 141

^ e.g. IWGB v Roofoods Ltd EWCA Civ 952, denying Deliveroo cyclists even had standing as workers for statutory recognition.

^ 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."

^ Treaty of Versailles 1919, Part XIII, Section I and art 427

^ 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

private employment agencies
, but only Convention 181 is in force.

^ Singapore Ministerial Declaration (13 December 1996)

RB Freeman
, Can Labor Standards Improve under Globalization? (Institute for International Economics 2003)

^ e.g. EU-South Korea Free Trade Agreement (14 May 2011) OJ 2011 L127, article 13

^ Tariff Preference Regulation (EC) No 732/2008 arts 7, 8, 15 and Annex II and III

^ ^a ^b [2011] UKSC 36

^ [2006] UKHL 3, [2006] 1 All ER 823

^ [2012] UKSC 1

^ Rome I Regulation (Regulation (EC) No 593/2008)

^ Brussels I Regulation (EC) No 44/2001

^ See Rome I, recital 23 and Brussels I, recital 13

^ (2008) C-319/05

References

Texts

ISBN 1-84113-362-0

S Deakin, G Morris, Labour Law (5th edn Hart 2009)

M Freedland
, 'Employment' in H Beale et al. (ed), Chitty on Contracts (30th edn Sweet and Maxwell 2009)

E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine)

Treatises

H Collins
, Justice in Dismissal (OUP 1992)

H Collins
, Nine proposals for the reform of the law on unfair dismissal (Institute of Employment Rights 2004)

KD Ewing
(ed), The Right to Strike: From the Trade Disputes Act 1906 to a Trade Union Freedom Bill 2006 (Institute for Employment Rights 2006)

A Fox, Beyond Contract: Work, Power and Trust Relations (Faber 1974)

B Hepple
, Labour Laws and Global Trade (Hart 2005)

M Freedland, The Contract of Employment (1976)

O Kahn-Freund
, Labour and the Law (Hamlyn Lectures 1972)

History of Trade Unionism
(1894)

B Webb, Industrial Democracy
(Longmans 1902)

ISBN 0-421-37060-2

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

A Döse-Deigenopoulos and A Höland, 'Dismissal of Employees in the Federal Republic of Germany' (1985) 48(5) Modern Law Review 539-563

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

BA Hepple
and BW Napier, 'Temporary Workers and the Law' (1978) 7 Industrial Law Journal 84

O Kahn-Freund
, 'Labour Law' in M Ginsberg (ed), Law and Opinion in England in the 20th Century (Stevens 1959)

D Kershaw
, 'No End in Sight for the History of Corporate Law: The Case of Employee Participation in Corporate Governance' (2002) 2 Journal of Corporate Law Studies 34

E McGaughey, 'Should Agency Workers be Treated Differently?' (2010) SSRN

C Mogridge, 'Illegal Contracts of Employment: Loss of Statutory Protection' (1981) 20 ILJ 23

B Simpson, 'The National Minimum Wage Five Years On' (2004) 33 ILJ 22

I Steele, 'Sex Discrimination and the Material Factor Defence under the Equal Pay Act 1970 and the Equality Act 2010' (2010) 39 ILJ 264

C Summers, 'Collective agreements and the law of contracts' (1969) 90 Yale Law Journal 539

KW Wedderburn
, 'Shareholders' rights and the rule in Foss v Harbottle' [1957] 16 Cambridge Law Journal 194

KW Wedderburn
, 'Employees, Partnership and Company Law' [2002] 31(2) Industrial Law Journal 99

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

External links

Case law

Page for employment judgments, including Employment Tribunal

Employment Appeal Tribunal judgments on bailii.org.uk

List of prominent labour law cases on bailii.org.uk

National

Employment rights guidance from direct.gov.uk

DBIS Employment Legislation - PL712 - Meaning of dismissal Archived 23 August 2005 at the Wayback Machine

DBIS Employment Legislation - PL712 - Making a complaint Archived 24 November 2005 at the Wayback Machine

International

Website with information on worker participation in the EU

List of ILO Conventions ratified by the UK

v
t
e
Labour law of Europe
Sovereign states

Albania

Andorra

Armenia

Austria

Azerbaijan

Belarus

Belgium

Bosnia and Herzegovina

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Georgia

Germany

Greece

Hungary

Iceland

Ireland

Italy

Kazakhstan

Latvia

Liechtenstein

Lithuania

Luxembourg

Malta

Moldova

Monaco

Montenegro

Netherlands

North Macedonia

Norway

Poland

Portugal

Romania

Russia

San Marino

Serbia

Slovakia

Slovenia

Spain

Sweden

Switzerland

Turkey

Ukraine

United Kingdom

States with limited
recognition

Abkhazia

Kosovo

Northern Cyprus

South Ossetia

Transnistria

Dependencies and
other entities

Åland

Faroe Islands

Gibraltar

Guernsey

Isle of Man

Jersey

Svalbard

Retrieved from "https://en.wikipedia.org/w/index.php?title=United_Kingdom_labour_law&oldid=1218381288"

[293] Conspiracy and Protection of Property Act 1875 and repeated in the Trade Disputes Act 1906
.

[310] Police Act 1996 s 91^[306] (England and Wales), The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 article 9^[307] (Scotland), Police (Northern Ireland) Act 1998 s 68^[308] (Northern Ireland).

[313] Anomalously, the Merchant Shipping Act 1995 s 59^[310] grants a further exception.

[464] 30 Geo. 3. c. 4), to prevent 'much danger' that 'may arise to the publick Tranquillity from the Resort and Residence of Aliens', section 1 stated masters of ships had to declare to customs officers the number and details of aliens on board. Sections 15-16, the Crown could order 'any alien' to depart the realm and if he refused, he could be arrested, detained, sentenced by a court to a month prison and removed. Aliens Restriction Act 1914
s 1(1)(k), SS could regulated governing entry, residence and deportation an 'any other matters which appear necessary or expedient with a view to the safety of the realm.' Aliens Order 1920 brought a system of work permits issued by the Ministry of Labour.

[465] .g. Master and Servant Act 1823, and see Ernest Jones, Democracy Vindicated (4 January 1867) 'In one year alone, 1864, the last return given, under the Master and Servants Act, 10,246 working men were imprisoned at the suit of their masters — not one master at the suit of the men!"

[1] See Office for National Statistics, 'Labour market overview, UK: December 2021' (14 December 2021) and 'Average actual weekly hours of work for full-time workers (seasonally adjusted)' (14 December 2021). DBEIS, Trade Union Membership, UK 1995-2020: Statistical Bulletin (27 May 2021)

[2] ERA 1996 s 244 and Trade Union and Labour Relations (Consolidation) Act 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]

[:4-4] Gov, Uk (April 2023). "National Minimum Wage and National Living Wage rates".

[5] NHS Act 2006 Sch 7, paras 3-9. E McGaughey, A Casebook on Labour Law (2019) ch 11, 'Votes at work' and E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel (2018) 47(1) Industrial Law Journal 76

[6] See the Information and Consultation of Employees Regulations 2004 reg 20 and Junk v Kühnel (2005) C-188/03, [43]

[7] See the Companies Act 2006 ss 110 ff

[8] Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and Agency Workers Regulations 2010

[9] ERA 1996
ss 86, 94 and 135. The qualification period is one month for one week's notice, and after two years, employees must have at least two weeks' notice, a fair reason and redundancy pay. The minimum level of notice and redundancy pay increases each year of employment.

[10] See Autoclenz Ltd v Belcher [2011] UKSC 41, [35]

[11] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 1. S Deakin, C Barnard, Z Adams, S Fraser-Butlin, Labour Law (Hart 2021) ch 1

[12] (1772) 20 State Tr 1

[13] servitude
, forced labour for prisoners, was abolished.

[14] See Henry James Sumner Maine, Ancient Law (1861)

[15] An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book I, ch 8, §12. Also JS Mill, Chapters on Socialism (1879) ch 1
, "No longer enslaved or made dependent by force of law, the great majority are so by force of poverty; they are still chained to a place, to an occupation, and to conformity with the will of an employer, and debarred, by the accident of birth both from the enjoyments, and from the mental and moral advantages, which others inherit without exertion and independently of desert. That this is an evil equal to almost any of those against which mankind have hitherto struggled, the poor are not wrong in believing."

[16] See also, the Eleventh and Final Report of the Royal Commission on Trade Unions (1868-69); Employers and Workmen Act 1875.

[17] [1892] AC 25

[18] [1901] AC 426

[19] Versailles Treaty, Part XIII

[20] Versailles Treaty
1919, Part XIII and Art 427

[21] 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

[22] KD Ewing
, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1.

[23] B Webb, Industrial Democracy
(Longmans 1902)

[24] See Constantine v Imperial Hotels Ltd [1944] KB 693.

[25] 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."

[26] 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."

[27] 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.

[28] With the notable exception of the leading case, Defrenne v Sabena (No 2) [1976] ECR 455 (C-43/75)

[29] See also Redundancy Payments Act 1965 and the Employment Protection (Consolidation) Act 1978.

[30] Alan Bullock, Report of the committee of inquiry on industrial democracy (1977) Cmnd 6706

[31] Employment Act 1980 (trade union right to government funds for ballots, narrowed picketing 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), Trade Union and Labour Relations (Consolidation) Act 1992 (consolidated legislation hitherto), Trade Union Reform and Employment Rights Act 1993 (trade union duty to inform employers of upcoming strikes)

[:2-32] Gisda Cyf v Barratt [2010] UKSC 41

[33] WTR 1998 regs 13–14; Pensions Act 2008 s 3; Equality Act 2010

[34] Health and Safety at Work Act 1975 s 2; Employment Rights Act 1996 ss 1, 71–80I, 86, 94 and 135; Social Security Benefits and Contributions Act 1992 ss 1–2

[35] See particularly Employment Rights Act 1996 s 230

[36] Malik v BCCI SA
[1997] UKHL 23

[37] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 3. S Deakin and G Morris, Labour Law (2012) ch 3

[38] IRLR
137

[39] O Kahn-Freund
, Labour and the Law (Hamlyn Lectures 1972)

[40] Employment Relations Act 1999 s 23

[41] Yewens v Noakes (1880) 6 QBD 530; R v Negus (1873) LR 2 CP 34

[42] Stevenson, Jordan & Harrison v MacDonald & 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] See National Insurance Act 1946 s 1(2)

[44] MacKenna J
.

[45] Montreal v Montreal Locomotive Works
[1947] 1 DLR 161, 169, per Lord Wright

[46] Autoclenz Ltd v Belcher [2011] UKSC 41, [19] approving Nethermere and [37], quoting para [38] of Foxwell J, referring to "mutual obligations, namely the provision of work in return for money ..."

[47] Nethermere (St Neots) Ltd v Gardiner [1984] IRLR 240, Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 217

[48] O'Kelly v Trusthouse Forte plc [1983] ICR 730, [1983] IRLR 369 and James v Greenwich LBC. This appeared to misinterpret M Freedland, The Contract of Employment (1976) 21–22, first in Airfix Footwear Ltd v Cope [1978] ICR 1210

[49] Autoclenz Ltd v Belcher [2011] UKSC 41, [17] approving Nethermere and [37] endorsing the consideration view.

[50] 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."

[51] [2011] UKSC 41, [35]

[52] Massey v Crown Life Insurance Company [1977] EWCA Civ 12

[53] Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32

[54] Pimlico Plumbers Ltd v Smith [2018] UKSC 29

[55] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 4-5. S Deakin and G Morris, Labour Law (2012) ch 4

[56] On the illegality principle, see Hounga v Allen [2014] UKSC 47

[57] Gisda Cyf v Barratt [2010] UKSC 41, [39]

[58] .g. French v Barclays Bank plc [1998] IRLR 646

[59] Harlow v Artemis International Corp Ltd [2008] EWHC 1126 (QB), [2008] IRLR 629

[60] Trade Union and Labour Relations (Consolidation) Act 1992 s 179

[61] Contrast Alexander and Wall v Standard Telephones & Cables Ltd (No 2) [1991] IRLR 287 and Kaur v MG Rover Group Ltd [2004] EWCA 1507

[62] See Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10. Standardised terms are also called "terms implied in law" and individualised implied terms are also called "terms implied in fact".

[63] Johnstone v Bloomsbury Health Authority
[1991] 2 All ER 293

[64] Devonald v Rosser & Sons [1906] 2 KB 728

[:3-65] Scally v Southern Health and Social Services Board [1992] 1 AC 294

[66] Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293

[67] Wilson v Racher [1974] ICR 428

[68] The Post Office v Roberts [1980] IRLR 347

[69] Transco plc v O'Brien [2002] EWCA Civ 379

[70] Mahmud and Malik v Bank of Credit and Commerce International SA
[1998] AC 20

[71] Mallone v BPB Industries plc [2002] EWCA Civ 126

[72] Johnstone v Bloomsbury Health Authority
[1991] 2 All ER 293

[73] .g. Cresswell v Board of Inland Revenue [1984] ICR 508

[74] Rigby v Ferodo Ltd [1988] ICR 29

[75] Robertson v British Gas Corp [1983] ICR 351

[76] See Bateman v Asda Stores Ltd [2010] IRLR 370, per Silber J, but contrast Department for Transport v Sparks [2016] EWCA Civ 360 and Equitable Life Assurance Society v Hyman [2002] AC 408

[77] Wandsworth London Borough Council v D'Silva [1998] IRLR 193

[78] There are also proposals circulating moving towards setting principles resembling a "maximum wage"; see Financial Services Authority pay code Archived 6 August 2010 at the UK Government Web Archive. E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 6. S Deakin and G Morris, Labour Law (2012) ch 4

[79] Statute of Labourers
fixed wages for the benefit of employers and feudal landlords.

[80] Employment Rights Act 1996 s 14

[81] Miles v Wakefield Metropolitan District Council [1987] UKHL 15, [1987] AC 539. See also, Wiluszynski v London Borough of Tower Hamlets [1989] ICR 439, but contrast Hartley v King Edward VI College [2017] UKSC 39.

[82] See also S Webb, 'The Economic Theory of a Legal Minimum Wage' (1912) 20(10) Journal of Political Economy 973-998

[83] See Trade Union Reform and Employment Relations Act 1993

[84] Agricultural Sector (Wales) Bill - Reference by the Attorney General for England and Wales [2014] UKSC 43, holding the Welsh government could keep a wages board

[85] .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

[86] European Social Charter 1961 art 4, ILO Minimum Wage Fixing Convention No 131 (1970), European Community Charter of Fundamental Social Rights 1989
art 5

[87] NMWA 1998 ss 1 and 54(3). Workers do not need to show "mutuality of obligation": James v Redcats (Brands) Ltd [2007] IRLR 296 (EAT). NMWA 1998 s 34 expressly including agency workers, though National Minimum Wage Regulations 1999 reg 12 excludes au pairs and family members in family business and reg 26 allows adults in the first 26 weeks of accredited training to be paid at a lower rate.

[88] Edmonds v Lawson [2000] QB 501, saying a pupil did not work but merely had to be "conscientious in receiving instruction".

[89] rentices", and stood in 2014 at £2.73. "Minimum wage to rise by 15p"
. The Guardian. Press Association. 7 April 2011.

[90] National Minimum Wage Regulations 2015 SI 2015/621

[91] McCartney v Oversley House Management
[2006] IRLR 514 (EAT)

[92] See Scottbridge Construction Ltd v Wright [2002] ScotCS 285, but then National Minimum Wage Regulations 2015 say that a worker given suitable sleeping facilities is not doing work when not awake for the purpose of working.

[93] [2003] EWCA Civ 199, [2003] IRLR 469

[94] SI 2009/1902 reg 5 removed an exception for tips paid through the payroll previously found in National Minimum Wage Regulations 1999
reg 31.

[95] National Minimum Wage Act 1998 ss 17-18

[96] National Minimum Wage Act 1998 ss 10 and 23-25

[97] National Minimum Wage Act 1998 ss 14, 19 and 20. See also the Employment Act 2008

[98] National Minimum Wage Act 1998 ss 11 and 21

[99] See the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) rule 3.18

[100] See the History of tax in the UK, dating back to the Income Tax Act 1803 to fund the Napoleonic Wars, repealed and then reintroduced by Robert Peel in the Income Tax Act 1842. See also the Beveridge Report, Social Insurance and Allied Services (1942) Cmd 6404

[101] The Taxation of Chargeable Gains Act 1992, requires higher or additional rate payers to pay 28% tax on gains from residential property, and 20% on gains from other assets, when selling, or transferring the property.

[102] Income Tax Act 2007 s 8 make the tax on dividends in 2019 for basic rate payers 7.5%, for higher rate payers 32.5%, and for additional rate payers 38.1%.

[103] Corporation Tax Act 2010 sets a main rate of tax at 19%.

[104] See the Income Tax (Earnings and Pensions) Act 2003 ss 48-61 and the leaflet IR35 on disguised employment. Also HMRC v PA Holdings [2011] EWCA Civ 1414.

[105] European Social Charter 1961
s 2(1) on progressive reduction of the working week.

[106] PAYE series, a P60 form from employers proves tax was paid at the end of the year, a P45 form is for 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
. Similar abbreviations for forms are used for self-assessment and tax credits, e.g. S100 and TC600.

[107] See AL Bogg, 'Sham self-employment in the Supreme Court' (2012) 41 ILJ 328, Autoclenz Ltd v Belcher [2012] UKSC 41, and E McGaughey, 'Uber, the Taylor Review, Mutuality and the Duty Not to Misrepresent Employment Status' (2019) 48(2) ILJ 280

[108] See Devonald v Rosser & Sons [1906] 2 KB 728, Pulse Healthcare Ltd v Carewatch Care Services Ltd (2012) UKEAT/0123/12/BA, and Borrer v Cardinal Security Ltd [2013] UKEAT 0416_12_1607. See also E. McGaughey, "Are Zero Hours Contracts Lawful?" (2014) SSRN

[109] 2003/88/EC, replacing 93/104/EC. E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 7. S Deakin and G Morris, Labour Law (2012) ch 4

[110] 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

[111] Working Time Directive 2003 art 7 and Working Time Regulations 1998 regs 13-16. SI 2007/2079 reg 2 updated the period to 28 days, expressed often as 5.6 weeks, if one takes "week" to mean a five-day working week.

[112] 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.

[113] Accordingly, the Working Time Directive 2003 was passed under the authority of Treaty on the Functioning of the European Union art 153(1)(a).

[114] Schultz-Hoff v Deutsche Rentenversicherung Bund
[2009] UKHL 31, [2009] IRLR 214, also, C-520/06 and C-350/06.

[115] Working Time Directive 2003 arts. 8-13 and Working Time Regulations 1998 rr. 2-7

[116] 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.

[117] Working Time Regulations 1998 r 4(3)(b)

[118] (2005) C-397/01, [2005] IRLR 137, referring to workers being the "weaker party" to a contract.

[119] Working Time Directive 2003 art 22, Working Time Regulations 1998 regs 4-5

[120] See Fuß v Stadt Halle [2010] IRLR 1080, reducing pay after requesting to move to reduced hours is victimisation.

[121] SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana
(2000) C-303/98, [2000] ECR I-7963

[122] (2003) C-151/02, [2003] ECR I-08389

[123] Social Security Contributions and Benefits Act 1992 s. 167

[124] 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.

[125] 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".

[126] 92/85/EEC

[127] Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312) reg 8

[128] 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.

[129] Social Security Contributions and Benefits Act 1992 s 167

[130] Employment Rights Act 1996 ss. 72-73 and Maternity and Parental Leave etc. Regulations 1999 rr. 7-8

[131] Work and Families Act 2006 (c. 18) abolished the qualification period for ordinary and additional maternity leave.

[ReferenceA-132] Maternity and Parental Leave etc. Regulations 1999 rr. 17-20

[133] Employment Rights Act 1996 ss. 75A-D and Paternity and Adoption Leave Regulations 2002 rr. 15-20

[134] Paternity and Adoption Leave Regulations 2002 SI 2002/2788 r. 6. Employment Rights Act 1996 ss 80A-E. See also Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (SI 2002/2822)

[135] Parental Leave Directive 2010/18/EU, replacing 96/34/EC

[136] Employment Rights Act 1996 ss 76-80 and Maternity and Parental Leave Regulations 1999 regs 13-15

[137] Maternity and Parental Leave etc. Regulations 1999 r. 16 and Sch. 2

[138] Additional Paternity Leave Regulations 2010 (SI 2010/1055)

[139] See "Gender Equality in Sweden" at sweden.se

[140] [2003] IRLR 184 (EAT)

[141] Employment Rights Act 1996 s 80H

[142] [2006] IRLR 171 (EAT). 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] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 6(4)

[145] See Pension Schemes Act 1993 s 1 and the Social Security Contributions and Benefits Act 1992

[146] Pensions Act 2008 ss 1, 13 and 88(3)

[147] Pensions Act 2008 ss 3 and 16

[148] See Pensions Act 2008 Sch 1

[149] See I. Adams, "Fewer than half of Britons save for pension, says survey" (3 April 2010), The Guardian, p. 35

[150] See further D Hayton, "Pension Trusts and Traditional Trusts: Drastically Different Species of Trusts" [2005] Conveyancer 229

[151] Imperial Group Pension Trust v Imperial Tobacco Ltd
[1991] 1 WLR 589

[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] Goode Report
, Pension Law Reform (1993) Cm 2342

[154] Pensions Act 2004 s. 243

[155] 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] Insolvency Act 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] Factories Act 1961

[166] Health and Safety Directive 89/391/EEC

[167] Before this, the National Insurance Act 1911, Part I created an employer-dependent system of health care, rather than a universal system.

[168] Social Security Contributions and Benefits Act 1992 ss. 151; Gisda Cyf v Barratt 155

[169] Franklin v South Eastern Railway (1858) 3 H&N 211 and Fatal Accidents Act 1976

[170] See Turberville v Stampe (1697) 91 ER 1072 and Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215

[171] See Morris v Ford Motor Co Ltd [1973] QB 792, 799 and Williams v Natural Life Health Foods Ltd [1998] UKHL 17

[172] Priestly v Fowler (1837) 3 Mees & Wels 1, abolished in Wilsons & Clyde Coal Co Ltd v English
[1938] AC 57, 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".

[173] This meant workers were assumed to voluntarily accept the dangers of their work by agreeing to their contracts of employment, 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. Only if an employee callously ignores clear directions of the employer will he be taken to have voluntarily assumed the risk, as in ICI Ltd v Shatwell [1965] AC 656 where an experienced quarry shotfirer said he "could not be bothered" to wait 10 minutes before setting off a detonation, and blew up his brother.

[174] Now the court will only reduce damages by the amount the employee contributed to their own injury. See Law Reform (Contributory Negligence) Act 1945 s 1

[175] [2002] EWCA Civ 1821

[176] [2002] UKHL 22. See also McGhee v National Coal Board [1972] 3 All ER 1008

[177] [2006] UKHL 20

[178] [2012] EWCA Civ 525

[179] Regulation of Investigatory Powers Act 2000 ss 1(3), 2(7)-(8) and Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 reg 3, including consent of both the sender and recipient, compliance with a legal obligation or national security.

[180] [2017] ECHR 754, [80]. Contrast Lopez Ribalda v Spain [2020] IRLR 60, the ECHR rejecting that people's privacy rights were violated after they were caught stealing from a supermarket through covert security cameras. Surveillance was not used for any other purpose but for investigating theft.

[181] [1997] IRLR 471

[182] [1999] IRLR 734

[183] [2007] ECHR 253

[184] [2010] ECHR 1725

[185] General Data Protection Regulation 2016 art 4(11) on the meaning of "consent". Art 5 on processing principles. Previously Data Protection Act 1998 s 13, compensation for injury or distress if an employer, without telling the person and stating its purpose, collects personal data. Cf. Smith v. Maryland, 442 U.S. 735
(1979).

[186] GDPR 2016
art 9

[187] GDPR 2016
arts 16-17

[188] DPA 2018
ss 149 (enforcement notice), 155 (penalty notice), 165 (complaint to ICO)

[189] .g. Smith v Trafford Housing Trust [2012] EWHC 3321 (Ch), [2013] IRLR 86

[190] (1996) 21 EHRR 205. See also Redfearn v United Kingdom [2012] ECHR 1878, holding a violation of ECHR article 11, but also "in light of" article 10, when a bus driver was dismissed for membership of the British National Party.

[191] [2011] ECHR 1175

[192] Inserted by the Public Interest Disclosure Act 1998

[193] ERA 1996
s 43B

[194] ERA 1996
s 43G

[195] ECHR article 6 and R (Wright) v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267, but also Pay v United Kingdom
[2008] ECHR 1007, [2009] IRLR 139, probationer doing sado-masochistic videos was lawfully dismissed.

[196] See ECHR Prot 1, art 1, right to property, but see Nerva v United Kingdom [1996] IRLR 461; (2003) 36 EHRR 4, [2002] IRLR 815, rejecting a claim that employers taking tips was a violation. This is now unlawful in the UK in any case.

[197] The Representation of the People Act 1918 implemented universal suffrage, but only with the Representation of the People (Equal Franchise) Act 1928 did women have an equal voting age, and only with Representation of the People Act 1948 did voting become equal, regardless of university degree.

[198] B Webb, The History of Trade Unionism (1920)Appendix VIII

[199] Gisda Cyf v Barratt [2010] UKSC 41

[200] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) chs 8-11. S Deakin and G Morris, Labour Law (2012) ch 7-11

[201] Trade Union and Labour Relations (Consolidation) Act 1992 s 1

[202] ERA 1996
ss 98 and 135

[203] Morgan v Fry [1968] 2 QB 710, per Lord Denning MR

[204] Conspiracy, and Protection of Property Act 1875 and Trade Disputes Act 1906

[205] Trade Union and Labour Relations (Consolidation) Act 1992 s 219

[206] ILO Right to Organise and Collective Bargaining Convention, 1949
No 98

[207] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 8. S Deakin and G Morris, Labour Law (2012) ch 7

[208] International Covenant on Civil and Political Rights 1966
art 22

[209] R v Journeymen-Taylors of Cambridge (1721) 8 Mod 10, 88 ER 9, Hilton v Eckersley (1855) 6 El & Bl 47 and Hornby v Close (1867) LR 2 QB 153. See further JV Orth, Combination and conspiracy: a legal history of trade unionism, 1721-1906 (1992)

[210] B Webb, Industrial Democracy (1920) chs 1 and 2

[211] Industrial Relations Act 1971 s 14 and Sch 4

[212] Trade Union and Labour Relations Act 1974

[213] P Elias
, Trade Union Democracy, Members' Rights and the Law (Mansell 1987) ch 5, 139-151 and R Undy and R Martin, Ballots and Trade Union Democracy (1984) 58-59, finding 63 of 101 unions with direct elections, or 61% of total membership.

[214] Department of Employment, Democracy in Trade Unions (1983) Cm 8778, ch 2, 3

[215] Trade Union and Labour Relations (Consolidation) Act 1992 ss 47, 50-51

[216] stal ballots
among members.

[217] Brown v Amalgamated Union of Engineering Workers [1976] ICR 147

[218] Trade Union and Labour Relations (Consolidation) Act 1992 ss 55-56

[219] [1999] IRLR 166

[220] [1971] 2 QB 175

[221] Lord Hoffmann and Equitable Life Assurance Society v Hyman [2000] UKHL 39

[222] [2001] IRLR 808

[223] TULRCA 1992 ss 10 and 12. It is doubtful that executives or employees are jointly liable without a specific assumption of responsibility: see Williams v Natural Life Health Foods Ltd [1998] UKHL 17

[224] TULRCA 1992
s 12

[225] [1950] 2 All ER 1064

[226] Foss v Harbottle (1843) 67 ER 189, which suggests that if no express rule is broken (e.g. there is an allegation of mismanagement by union officials) there is a preference for exhausting a union's internal dispute or decision-making procedures before litigation.

[227] TULRCA 1992
ss 29-45A

[228] See Amalgamated Society of Railway Servants v Osborne [1910] AC 87 (political donations ultra vires), Trade Union Act 1913 reversed Osborne. Trade Disputes and Trade Unions Act 1927 required union members opt into a political fund. Trade Disputes and Trade Unions Act 1946 changed the default, so there was a right to opt out, then regulated further by the Trade Union Act 1984.

[229] sset managers
.

[230] Paul v NALGO [1987] IRLR 413

[231] Certification Officer, Annual Report 2010-11 (2011)

[232] [1978] ICR 676

[233] [1974] ICR 625

[234] TUC, Disputes Principles and Procedures (2000)

[235] [2007] ECHR 184

[236] See also Cheall v APEX [1983] 2 AC 180, per Lord Diplock, 'freedom of association can only be mutual; there can be no right of an individual to associate with other individuals who are not willing to associate with him.'

[237] TULRCA 1992
ss 62-65

[238] See Knowles v Fire Brigades Union [1997] ICR 595

[239] ILO Committee of Experts, 'Individual Observation Concerning Convention 87' (1989) 'provisions which deprive trade unions of the capacity to give effect to their democratically determined rules are, prima facie, not in conformity with this right. [TULRCA 1992 ss 64-65 on the right 'not to strike'] clearly has this effect, and on that basis is not in conformity with Article 3.' It should 'be possible to discipline members who refuse to participate in lawful strikes...'

[240] Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2, [1942] AC 435

[241] Demir and Baykara v Turkey [2008] ECHR 1345

[242] ILO Freedom of Association and Protection of the Right to Organise Convention (1948) No 87 and ILO Right to Organise and Collective Bargaining Convention, 1949 C98

[243] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 9. S Deakin and G Morris, Labour Law (2012) ch 8-9

[244] See also Companies Act 2006 section 172.

[245] KD Ewing
, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1

[246] TULRCA 1992
s 219 ff

[247] Introduced by the Employment Relations Act 1999

[248] TULRCA 1992
, Sch A1, paras 6 and 7

[249] TULRCA 1992
, Sch A1, para 35

[250] [2005] EWCA Civ 1309

[251] See the Central Arbitration Committee website

[252] TULRCA 1992
, Sch A1, para 11-19

[253] TULRCA 1992
, Sch A1, para 19B

[254] Fullarton Computer Industries Ltd v Central Arbitration Committee [2001] Scot CS 168

[255] [2002] EWCA Civ 512

[256] TULRCA 1992
, Sch A1, para 22

[257] TULRCA 1992
, Sch A1, para 22(4)

[258] TULRCA 1992
, Sch A1, para 25 and 26

[259] TULRCA 1992
, Sch A1, para 36

[260] TULRCA 1992, Sch A1
, para 31-32

[261] See further Gallagher v Post Office [1970] 3 All ER 712 and New Century Cleaning Co Ltd v Church [2000] IRLR 27

[262] Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2 and RMT v Serco; ASLEF v London & Birmingham Railway [2011] EWCA Civ 226

[263] Demir and Baykara v Turkey [2008] ECHR 1345

[264] .g. Harrison v Kent County Council [1995] ICR 434 (EAT) per Mummery J, holding refusal of employment for someone having ostensibly 'an uncooperative attitude and anti-management style' was simply a code for union organising, and thus unlawful.

[265] [1992] ICR 221

[266] [2002] ECHR 552

[267] TULRCA 1992
s 146.

[268] Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493)

[269] T Piketty, Capital in the Twenty-First Century (2014) Technical Appendices, Table S9.2

[270] Young, James and Webster v United Kingdom [1981] ECHR 4 and Employment Act 1990

[271] Pensions Act 2008 ss 3 and 8

[272] TULRCA 1992 s 168

[273] TULRCA 1992 s 170. This was held not to cover political protest activities, see Luce v Bexley LBC
[1990] ICR 591 (EAT)

[274] Revised ACAS Code of Practice 3, Time off for trade union duties and activities (2010) acas.org.uk

[275] Young, James and Webster v United Kingdom [1981] ECHR 4

[276] TULRCA 1992
s 146(3)

[277] Pensions Act 2008 ss 3 and 8

[278] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 10. S Deakin and G Morris, Labour Law (2012) ch 11

[279] .g. Certification of the Constitution of the Republic of South Africa [1996] ZACC 26, [66], confirming the right to strike as more important than a right to lock-out.

[280] Lord Bramwell referring to the Trade Union Act 1871

[281] B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441

[282] RMT v UK [2014] ECHR 366

[283] Lord Bramwell

[284] Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, 463

[285] Lord Denning MR

[286] London Underground Ltd v RMT
[1996] ICR 170

[287] P Elias
, 'The Strike and Breach of Contract: A Reassessment' in KD Ewing, CA Gearty and BA Hepple, Human Rights and Labour Law (1994) ch 11

[288] See Taff Vale Rly Co v Amalgamated Society of Rly Servants [1901] UKHL 1, Quinn v Leathem [1901] UKHL 2 and South Wales Miners' Federation v Glamorgan Coal Co [1905] AC 239, reversed by the Trade Disputes Act 1906.

[289] .g. Rookes v Barnard [1964] UKHL 1 and Metrobus Ltd v Unite [2009] EWCA Civ 2009

[290] .g. R v Mawbey (1796) 6 Term Rep 619, 101 ER 736, cf Timeplan Education Group Ltd v NUT [1997] IRLR 457

[291] Lumley v Gye (1853) 2 E&B 216

[292] Tarleton v McGawley (1793) 1 Peake 270, 170 ER 153

[294] Tony Blair, 'We won't look back to the 1970s' (31 March 1997) The Times, 'The essential elements of the trade union legislation of the 1980s will remain. There will be no return to secondary action, flying pickets, strikes without ballots, the closed shop and all the rest. The changes that we do propose would leave British law the most restrictive on trade unions in the Western world. The scenes from Wapping, Grunwick or the miners' strike could no more happen under our proposals than under the existing laws.'

[295] A Manifesto for Labour Law: towards a comprehensive revision of workers' rights (Institute of Employment Rights, 2016) 1 and 70, reviewed in (2017) 46(1) Industrial Law Journal 169
.

[296] [1977] ICR 686

[297] Express Newspapers Ltd v Keys [1980] IRLR 247

[298] Mercury Communications Ltd v Scott-Garner [1984] ICR 74

[299] ECHR article 11 challenge in Unison v United Kingdom
[2002] IRLR 497

[300] In re P (a minor) [2003] UKHL 8, [4]

[301] TULRCA 1992 s 224(2)

[302] General Strike
.

[303] Trade Disputes and Trade Unions Act 1946 until, following Express Newspapers ltd v MacShane [1980] ICR 42 and the Employment Act 1980. It was then said in Department of Employment, Trade Union Immunities (1981) Cm 8128, para 149, that a total ban 'could tilt the balance of power unacceptably to the benefit of employers'. The present provisions were enacted in the Employment Act 1990

[304] ECHR article 11, albeit without discussion of the inequality of bargaining power that is inherent when employees exercise freedom of association, including who the employer purports to make the contract with. cf Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4

[305] See further J Prassl, The Concept of the Employer (2015) and cf Duport Steel Ltd v Sirs [1980] ICR 161

[306] TULRCA 1992 ss 220-220A. See also R (Laporte) v Chief Constable of Gloucestershire
[2006] UKHL 55, [47].

[307] "Police Act 1996: Section 91", legislation.gov.uk, The National Archives, 22 May 1996, 1996 c. 16 (s. 91), retrieved 26 December 2023

[308] "The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013: Article 9", legislation.gov.uk, The National Archives, 12 March 2013, SI 2013/602 (art. 9), retrieved 26 December 2013

[309] "Police (Northern Ireland) Act 1998: Section 68", legislation.gov.uk, The National Archives, 24 July 1998, 1998 c. 32 (s. 68), retrieved 26 December 2023

[311] Criminal Justice and Public Order Act 1994 ss 127-8. See further POA v United Kingdom [2013] ECHR 600 and Hrvatski Liječnički sindikat v Croatia [2014] ECHR 1417

[312] "Merchant Shipping Act 1995: Section 59", legislation.gov.uk, The National Archives, 19 July 1995, 1995 c. 21 (s. 59), retrieved 26 December 2023

[314] ILO Convention No 87, art 6. Civil Contingencies Act 2004
s 23(3)(b) requires that emergency powers cannot limit the right to strike.

[315] Lord Donovan, Royal Commission on Trade Unions and Employers' Associations (1968) Cmnd 3623 rejected a need for ballots, but Department of Employment, Democracy in Trade Unions (1983) Cm 8778 led to their introduction in the Trade Union Act 1984

[316] TULRCA 1992
s 226A

[317] TULRCA 1992
s 226(2)(a)(iia) and (2E).

[318] TULRCA 1992
s 226B-232B

[319] TULRCA 1992
s 231-234A

[320] Network Rail Infrastructure Ltd v NURMT [2010] EWHC 1084 (QB), EDF Energy Powerlink Ltd v NURMT [2009] EWHC 2852 QB, British Airways Plc v Unite the Union [2009] EWHC 3541

[321] [2010] EWCA Civ 669

[322] [2011] EWCA Civ 226

[323] See RMT v Serco Ltd [2011] EWCA Civ 226, [9] per Elias LJ

[324] TULRCA 1992
s 238A

[325] TULRCA 1992
ss 20-21 on damages.

[326] American Cyanamid Co v Ethicon Ltd [1975] AC 396

[327] [1979] 1 WLR 1294

[328] A McColgan
, Labour Law (2012) ch 15, 593-655

[329] RH Thaler, 'Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias' (1991) 5(1) Journal of Economic Perspectives 193, 198 and discussed in E McGaughey, 'Behavioural Economics and Labour Law' (2015) LSE Law, Society and Economy Working Papers 20/2014
, 20-24

[330] EPA 1975
ss 17 and 19

[331] Companies Act 2006, ss 172(1)(b)-(c) and 417(2), which states this information's purpose is "to inform members of the company and help them assess how the directors have performed their duty under section 172 (duty to promote the success of the company)." Any party registered as a company member can enforce this duty.

[332] KD Ewing
, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1.

[333] Community Charter on the Fundamental Social Rights of Workers 1989
arts 17 and 18

[334] Association de médiation sociale v Union locale des syndicats CGT (2014) C‑176/12, [2014] IRLR 310

[335] Health and Safety Directive
89/391/EC art 11

[336] Information and Consultation of Employees Directive 2002/14/EC
.

[337] EWCD 2009
Annex para 2

[338] Information and Consultation of Employees Directive 2002/14/EC

[339] Part-Time Workers Directive
', Collins, Ewing and McColgan (2012) 626

[340] ICED 2002
art 4(2)

[341] ICED 2002
arts 4-5. Theoretically, employees can agree to lower standards, but will rarely have an incentive to do so.

[342] ICED 2002
art 4(4)(e)

[343] Junk v Kühnel (2005) C-188/03, [43] the Collective Redundancies Directive 1998 'imposes an obligation to negotiate'.

[344] National Labor Relations Act 1935 §8(d) duty to 'meet at reasonable times, and confer in good faith with respect to wages, hours, and other terms and conditions of employment'. NLRB v Borg-Warner Corp, 356 U.S. 342
(1958) at 349, 'The duty is limited to those subjects and within that area neither party is legally obligated to yield... As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree.'

[345] ICER 2004
reg 7

[346] ICER 2004
reg 8, with reg 8(6) adding that turnout must be high enough so that 40 per cent of total staff favour a new procedure.

[347] [2006] IRLR 592, [2006] ICR 1253 (EAT)

[348] ICER 2004
reg 23

[349] CFREU
art 47

[350] Collins, Ewing and McColgan (2012) 605

[351] TICER 1999
Sch, para 7

[352] EWCD 2009
art 3

[353] EWCD 2009
art 5

[354] EWCD 2009
Annex

[355] .g. S Laulom, 'The Flawed Revision of the European Works Council Directive (2010) 39(2) Industrial Law Journal 202

[356] Collective Redundancies Directive 98/59/EC
. For over 100 redundancies, the time is 45 days, reduced from 90 days by the Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013/763 art 3.

[357] TULRCA 1992
s 195

[358] [2015] UKSC 26

[359] (2015) C-182/13, [52]

[360] [1984] IRLR 135 (EAT)

[361] CRD 1998
art 2(1)

[362] (2009) C-44/08, [48]

[363] (2009) C-44/08, [63]-[65]

[364] TULRCA 1992
s 188(1B)-188A

[365] .g. Clark's of Hove v Baker's Union [1978] ICR 1076

[366] Junk v Kühnel (2005) C-188/03, [41]-[43] "the directive imposes an obligation to negotiate".

[367] TULRCA 1992
ss 189-196

[368] Royal Mail Group Ltd v CWU [2009] EWCA Civ 1045

[369] E McGaughey, A Casebook on Labour Law (2019) ch 11, 'Votes at work'. E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel' (2016) 47(1) Industrial Law Journal 76

[370] .g. Oxford University Act 1854 ss 16 and 21, Cambridge University Act 1856 ss 5 and 12. Also the Further and Higher Education Act 1992, ss 20(2) and 85, and Sch 4, para 4. National Health Service Act 2006 Sch 7.

[371] 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

[372] Betriebsverfassungsgesetz
1972 §87. Member states with no participation rights are Belgium, Cyprus, Estonia, Italy, Latvia, Lithuania, Romania and the United Kingdom.

[373] Employee Involvement Directive 2001/86/EC

[374] PL Davies, 'Workers on the Board of the European Company?' (2003) 32(2) Industrial Law Journal 75

[375] Oxford University Act 1854 ss 16 and 21

[376] Cambridge University Act 1856 ss 5 and 12; cf King's College London Act 1997 s 15, though since amended.

[377] 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.

[378] 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 Companies Act 1985, section 309, requiring directors to act in shareholders and employees' interests, now reflected in Companies Act 2006, s 172

[379] 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

[380] E McGaughey, A Casebook on Labour Law (Hart 2019 ch 12-14. S Deakin and G Morris, Labour Law (2012) ch 6

[381] Constantine v Imperial Hotels Ltd [1944] KB 693

[382] Equal Treatment Directive 2006/54/EC
, for gender.

[383] Wilson v United Kingdom
[2002] ECHR 552

[384] EA 2010
ss 4-14, 16, 18

[385] AWR 2010

[386] Lord Denning MR
(overturned on appeal).

[387] scrimination
may always be objectively justified, as with discrimination against part-time, fixed term or agency workers.

[388] EA 2010
s 13

[389] See James v Eastleigh BC [1990] 2 AC 751. R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 WLR 1, characteristic must simply be the reason

[390] [2003] UKHL 11, [2003] ICR 337

[391] See also, Ladele v London Borough of Islington [2009] EWCA Civ 1357, [39]

[392] 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

[393] (2008) C-303/06, [2008] IRLR 722

[394] [2008] EWCA Civ 1421

[395] See Showboat Entertainment Centre v Owens [1984] ICR 65, (EAT)

[396] Equality Framework Directive
2000/78/EC art 4

[397] [1989] IRLR 150

[398] (2010) C-229/08

[399] Contrast the stricter approach to policing, Johnston v Chief Constable of the Royal Ulster Constabulary (1986) C-222/84, [1986] 5 ECR 1651

[400] (1999) C-273/97, [1999] ECR I-7403

[401] 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

[402] R (Amicus) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin), [2004] IRLR 430

[403] EA 2010
s 40(2) and (3)

[404] [2006] UKHL 34, [2006] ICR 1199

[405] [2007] UKHL 16, [2007] ICR 841

[406] [2001] ICR 1065

[407] EA 2010
s 19

[408] Ladele v Islington BC [2009] EWCA Civ 1357
, [60], per Lord Neuberger MR

[409] Eweida v British Airways plc [2010] EWCA Civ 80
, [37], per Sedley LJ.

[410] (1986) C-170/84, [1986] ECR 1607

[411] (1999) C-167/97, [2000] UKHL 12

[412] 2006/54/EC

[413] EA 2010
ss 70-71 exclude the application of ss 39, 49-50, but not for direct discrimination in ss 13-14

[414] Civil Rights Act 1964 by amending the Fair Labor Standards Act of 1938
.

[415] Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH & Co KG
[1989] ECR 2743 (C-171/88)

[416] See Defrenne v Sabena (No 2) [1976] ECR 455 (C-43/75)

[417] See further S Deakin and G Morris, Labour Law (6th edn 2012) 696-7

[418] Civil Rights Act 1964
.

[419] 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.

[420] 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 woman 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.

[421] 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.

[422] [1978] 1 WLR 1429, [1978] IRLR 361

[423] [1987] IRLR 26

[424] Allonby

[425] (1992) C-127/92

[426] [1998] 1 WLR 259

[427] Redcar and Cleveland BC v Bainbridge [2007] EWCA Civ 929, [2008] ICR 238

[428] Allen v GMB [2008] EWCA Civ 810, [2008] IRLR 690

[429] Kutz-Bauer and Kücükdeveci v Swedex GmbH & Co KG
(2010) C-555/07, [2010] IRLR 346.

[430] 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

[431] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 14. S Deakin and G Morris, Labour Law (2012) ch 6

[432] (2006) C-13/05, [2006] IRLR 706

[433] Equality Act 2010 (Disability) Regulations 2010 regs 3-8 list various exclusions, such as nicotine or alcohol addiction, or a propensity to start fires.

[434] [2004] UKHL 32

[435] [2007] EWCA Civ 283

[436] 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.

[437] 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.

[438] (1996) C-409/95, [1996] ICR 45

[439] (2000) C-407/98, [2000] ECR I-05539

[440] (2000) C-158/97, [2001] 2 CMLR 6

[441] Temporary and Agency Work Directive
2008/104/EC

[442] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 15. S Deakin and G Morris, Labour Law (2012) ch 6

[443] SI 2000/1551

[444] [2006] UKHL 8

[445] [2013] UKSC 6

[446] See A McColgan, 'Missing The Point?' (2000) 29 ILJ 260, 267

[447] G Standing, The Precariat – The new dangerous class (2011)

[448] SI 2002/2034

[449] A McColgan
, 'The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002: Fiddling While Rome Burns?' [2003] 32 ILJ 194

[:5-450] Mangold v Helm (2005) C-144/04

[451] FTER 2002
regs 3-5

[452] See Adeneler v Ellinikos Organismos Galaktos (2006) C-212/04, [2006] IRLR 716, Grand Chamber holding objective justification for use of fixed-term contracts mean showing a genuine need, and measures employed are proportionate to that aim. Twenty days was too little to break continuity.

[453] ERA 1996 s 235 and Ford v Warwickshire CC
[1983] ICR 273

[454] .g. Transco plc v O'Brien [2002] EWCA Civ 379

[455] 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

[456] [2011] UKSC 41

[457] Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 21 and James v Greenwich LBC [2008] EWCA Civ 35

[458] SI 2003/3319

[459] Magna Carta 1215
art XLI, 'All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us.'

[460] Calvin's case (1608) 77 ER 377, holding all persons born in the Crown's dominions were subjects. Children born to subjects outside Dominions acquired the same status. Everyone else was an alien. Commonwealth Immigrants Act 1962 introduced a work permit scheme, and Commonwealth Immigrants Act 1968

[461] Treaty on the Functioning of the European Union art 45

[462] BL Abrahams, 'Expulsion of the Jews from England in 1290' (1894) 7(1) Jewish Quarterly Review 75.

[463] 4 & 5 Ph. & M.
c. 6 (French non-denizens expelled).

[466] Universal Declaration of Human Rights 1948 art 13

[467] .f. Taiwo v Olaigbe [2016] UKSC 31, on the facts holding that shocking treatment of a vulnerable person on a domestic work visa was not race (and nationality) discrimination (direct or indirect), as the mistreatment occurred solely due to migration status. The claimant succeeded in other claims such as for unlawful wage deductions, violation of break times.

[468] Previously implemented through the Immigration (European Economic Area) Regulations 2006.

[469] Immigration Act 1971 ss 1(3) and 3ZA, 'An Irish citizen does not require leave to enter or remain in the United Kingdom, unless subsection (2), (3) or (4) applies to that citizen' namely deportation, someone deemed by the Secretary of State as not conducive to the public good, or someone excluded. Sch 4 gives effect to immigration laws of the Islands.

[470] Immigration Act 1971 s 3C

[471] Immigration Rules paras 34A-B and 245AA. See also Pokhryal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [4] Jackson LJ, 'The rules governing the PBS... have now achieved a degree of complexity which even the Byzantine Emperors would have envied'.

[472] Mandalia v Secretary of State for the Home Department [2015] UKSC 59

[473] Also Overseas Domestic Worker visa, Representative of an Overseas Business visa and Service providers from Switzerland visa.

[474] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 16-19. S Deakin and G Morris, Labour Law (2012) ch 5

[475] See H Collins, 'Market Power, Bureaucratic Power, and the Contract of Employment' (1986) 15 Industrial Law Journal 1

[476] ILO Termination of Employment Convention, 1982 C 158
requires a "valid reason" for terminations, with "reasonable notice" and "severance pay", and the termination must be able to be appealed to an impartial authority. Virtually every developed country, except the United States, goes far beyond this low standard.

[477] Employment Rights Act 1996 s 86

[478] ERA 1996
s 94

[479] ERA 1996
s 135.

[480] TULRCA 1992 ss 188-192

[481] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 17-18. S Deakin and G Morris, Labour Law (2012) ch 5

[482] Gisda Cyf v Barratt [2010] UKSC 41. See also Locke v Candy & Candy Ltd [2010] EWCA Civ 1350 and 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.

[483] (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

[484] Nokes v Doncaster Collieries Ltd [1940] AC 1014

[485] Gunton v Richmond-Upon Thames LBC
[1980] ICR 755

[486] [2012] UKSC 63

[487] [1974] ICR 428, 430

[488] 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.

[489] [1974] ICR 428

[490] 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

[:1-491] [2011] UKSC 58

[492] Hill v CA Parsons & Co Ltd
[1972] Ch 305, where an employee won reinstatement, since the real conflict was with a union attempting to enforce the closed shop rather than the employer.

[493] [2003] 1 AC 518

[494] Unfair Dismissal Compensatory Awards: Final impact assessment (2013)

[495] [2004] UKHL 35, [2004] IRLR 732

[496] 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.

[497] 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.

[498] 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.

[499] E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 1 November 2020 at the Wayback Machine) ch 18. S Deakin and G Morris, Labour Law (2012) ch 5

[500] Second Reading, Hansard HC Deb (14 December 1970) vol 808 cols 961-1076 and Hansard HC Deb (15 December 1970) vol 808 cols 1126-247 and Third Reading, Hansard HC Deb 24 March 1971 vol 814 cols 547-706

[501] R (Seymour-Smith) v Secretary of State for Employment [2000] UKHL 12 and (1999) C-167/97

[502] 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.

[503] [1992] ICR 183

[504] [1978] ICR 221

[505] See also Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693

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Alexander v Standard Telephones Ltd (No 2) [1991] IRLR 287
TULRCA 1992 ss 179-180
Kaur v MG Rover Group Ltd [2004]
Malone v British Airways plc [2010] `
see Employment contract in English law

ERA 1996 ss 210-212
Cornwall County Council v Prater [2006] EWCA Civ 102
Ford v Warwickshire CC [1983] ICR 273
Duncombe v SS for Children, Schools, Families [2011] UKSC 14
see Employment contract in English law

R v DTI ex parte BECTU (2001) C-173/99
Robinson-Steele v RD Retail Services Ltd (2006) C-131/04
HM Revenue and Customs v Stringer (2009) C-520/06
Landeshauptstadt Kiel v Jaeger (2003) C-151/02
Barber v RJB Mining (UK) Ltd [1999] ICR 679
Employment Rights Act 1996 ss 50-70
Russell v Transocean International Resources Ltd [2011] UKSC 57
Apprenticeships, Skills, Children and Learning Act 2009 (c 22)
see Working time in the United Kingdom