This page intentionally left blank Perspectives on Labour Law This is an accessible but thought-provoking introduction to labour law It is suitable for those coming to the subject for the first time, and it will also be of interest to more advanced students, including postgraduates, who need to think about the subject’s broader themes The academic literature on labour law makes considerable use of human rights arguments and of economic analysis Both of these approaches provide valuable insights into the underlying policy of the law but they can be rather off-putting for students who not know the international human rights instruments, or who have no background in economics This book introduces these wider perspectives on labour law and then applies them to a selection of topics, including anti-discrimination law, dismissal, working time, pay, consultation and collective bargaining, trade union membership and industrial action A C L Davies is Fellow and Tutor in Law at Brasenose College, Oxford where she teaches Labour Law and Public Law The Law in Context Series Editors: William Twining (University College, London) and Christopher McCrudden (Lincoln College, Oxford) Since 1970 the Law in Context series has been in the forefront of the movement to broaden the study of law It has been a vehicle for the publication of innovative scholarly books that treat law and legal phenomena critically in their social, political, and economic contexts from a variety of perspectives The series particularly aims to publish scholarly legal writing that brings fresh perspectives to bear on new and existing areas of law taught in universities A contextual approach involves treating legal subjects broadly, using materials from other social sciences, and from any other discipline that helps to explain the operation in practice of the subject under discussion It is hoped that this orientation is at once more stimulating and more realistic than the bare exposition of legal rules The series includes original books that have a different emphasis from traditional legal textbooks, while maintaining the same high standards of scholarship They are written primarily for undergraduate and graduate students of law and of other disciplines, but most also appeal to a wider readership In the past, most books in the series have focused on English law, but recent publications include books on European law, globalization, transnational legal processes, and comparative law Books in the Series Ashworth: Sentencing and Criminal Justice Barton & Douglas: Law and Parenthood Bell: French Legal Cultures Bercusson: European Labour Law Birkinshaw: European Public Law Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal Cane: Atiyah’s Accidents, Compensation and the Law Collins: The Law of Contract Cranston: Consumers and the Law Cranston: Legal Foundations of the Welfare State Davies: Perspectives on Labour Law Davies & Freedland: Labour Law: Text and Materials de Sousa Santos: Toward a New Legal Common Sense Detmold: Courts and Administrators: A study in Jurisprudence Diduck: Law’s Families Doggett: Marriage, Wife-Beating and the Law in Victorian England Dummett & Nicol: Subjects, Citizens, Aliens and Others: Nationality and Immigration Law Elworthy & Holder: Environmental Protection: Text and Materials Fortin: Children’s Rights and the Developing Law Glover-Thomas: Reconstructing Mental Health Law and Policy Gobert & Punch: Rethinking Corporate Crime Goodrich: Languages of Law Hadden: Company Law and Capitalism Harlow & Rawlings: Law and Administration: Text and Materials Harris: An Introduction to Law Harris: Remedies, Contract and Tort Harvey: Seeking Asylum in the UK: Problems and Prospects Hervey & McHale: Health Law and the European Union Lacey & Wells: Reconstructing Criminal Law Lewis: Choice and the Legal Order: Rising above Politics Likosky: Transnational Legal Processes Maughan & Webb: Lawyering Skills Moffat: Trusts Law: Text and Materials Norrie: Crime, Reason and History O’Dair: Legal Ethics Oliver: Common Values and the Public-Private Divide Oliver & Drewry: The Law and Parliament Page & Ferguson: Investor Protection Palmer & Roberts: Dispute Processes–ADR and the Primary Forms of Decision Making Picciotto: International Business Taxation Ramsay: Consumer Protection: Text and Materials Reed: Internet Law: Text and Materials Richardson: Law, Process and Custody Seneviratne: Ombudsmen: Public Services and Administrative Justice Snyder: New Directions in European Community Law Stapleton: Product Liability Turpin: British Government and the Constitution: Text, Cases and Materials Twining: Globalisation and Legal Theory Twining & Anderson: Analysis of Evidence Twining & Miers: How to Things with Rules Ward: A Critical Introduction to European Law Ward: Shakespeare and Legal Imagination Zander: Cases and Materials on the English Legal System Zander: The Law-Making Process For my parents Perspectives on Labour Law A C L Davies Fellow and Tutor in Law, Brasenose College, University of Oxford    Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521605236 © Anne C L Davies 2004 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2004 - - ---- eBook (EBL) --- eBook (EBL) - - ---- paperback --- paperback Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate 244 What next? law would have on firms The ECtHR upheld Mr Wilson’s claim that his Article 11 rights had been breached, and although the government is now changing the law, it still plans to introduce a provision which will allow firms to transfer workers to personal contracts without being found to have discriminated on trade union grounds.12 Again, the emphasis is on the needs of firms and there is a clear reluctance to consider rights-based justifications From a strategic point of view, there is an important lesson here for those who want to advocate new labour legislation It is that they should emphasise the business benefits of their proposals rather than the need to protect workers’ rights But this will not come easily to those labour lawyers who are used to viewing their subject from a rights perspective Moreover, it may have some dangers for the future The claim that a particular measure will benefit firms can be tested empirically If it is found that a new piece of legislation has in fact been damaging to firms, there will be immediate calls for its repeal It will be difficult to start arguing at this stage that the measure should be retained because it protects workers’ rights As we have seen, both the government and the EU are drawn towards new institutionalist arguments because they offer a solution to the problems of globalisation This solution is regarded as either more likely to succeed – or more politically acceptable – than the deregulatory solution prescribed by the neoclassical theorists In the future, it will be possible to test whether or not the new institutionalist approach has worked Will multinational firms invest in the UK? Will low-skilled jobs lost in manufacturing be replaced by high-skilled jobs in information technology? The new institutionalists assume that countries with lower wages cannot offer the same benefits in terms of worker attitudes and qualifications But this might be regarded as a rather patronising assumption India is a good example of a relatively low-wage country with a good education system whose workers can compete not only on cost but also on quality So one question to ponder for the future is whether the high-skills strategy seems likely to succeed And if not, what (if anything) is the alternative? As well as evaluating these arguments at the more general, theoretical level, it is also important to assess the precise version being implemented by the government We saw on many occasions in earlier chapters that the government is also concerned to ensure that employers not face high costs as a result of regulation This often limits the government’s pursuit of new institutionalist arguments For example, the decision to introduce unpaid parental leave was criticised by many commentators as a ‘half-hearted’ measure because it means that many families will not be able to afford to take up the new right.13 The government also seeks to limit the EU’s regulatory ambitions by putting forward the argument that new measures will be a burden on business, particularly when the measures being proposed are unfamiliar 12 Wilson v UK [2002] 35 EHRR 20; DTI, Review of the Employment Relations Act 1999 (2003), paras 3.3–3.17 13 See chapter The UK to UK firms.14 The Framework Directive on Informing and Consulting Employees is an excellent example of this.15 Of course, new institutionalist arguments must, and do, weigh the benefits of regulation against the costs But some commentators believe that the government is failing to implement the new institutionalist approach because of its overriding concern with costs Will the high-skills strategy bring benefits even if it is implemented only in part? The government’s focus on costs is explained in part at least by its desire to take into account the arguments put forward by firms, through employers’ organisations such as the Confederation of British Industry (CBI) Although the CBI has accepted some elements of the high productivity approach, such as the emphasis on partnership in industrial relations and on providing training for the workforce, it retains a strongly deregulatory outlook.16 It campaigns in particular about the burden of ‘red tape’ faced by businesses: in other words, against the costs of complying with the law It argues that this is especially relevant for small businesses because they may not be able to afford legal advice and certainly cannot employ dedicated staff to deal with employment law issues As one of the members of UNICE, the European employers’ federation, the CBI is able to pursue these arguments on the EU level too, particularly when proposals are made to enact directives through the social dialogue procedure UNICE has resisted directives on informing and consulting employees in particular.17 The Member States were forced to enact the new Framework Directive through ordinary legislative procedures because it could not be agreed using the social dialogue It seems that deregulation is still the policy of the Conservative Party, so if there were to be a change of government at some point in the future, we would be likely to see significant shifts in direction for labour law Reducing the burdens on businesses would become the main focus of labour law policy, not just a factor to be taken into account when formulating that policy Recently, there has been considerable media interest in the increasing radicalism of trade unions, as evidenced by the strike action taken by fire-fighters and postal workers among others It is argued that unions are frustrated by the present government’s pro-business rhetoric and limited emphasis on labour rights The government’s decision to retain most of the industrial action legislation passed by previous Conservative governments has been a particular source of dissatisfaction It is certainly true that trade unions are a force for rights-based regulation of the labour market But industrial action is not their only strategy Unions regard litigation as an important means of securing their objectives The Wilson case, discussed above, illustrates the role of complaints to the ILO and the ECtHR.18 The BECTU case,19 in which a union successfully challenged the government’s attempt to impose 14 15 16 17 18 19 See, for example, B Bercusson, ‘The European social model comes to Britain’ (2002) 31 ILJ 209 Directive 2002/14/EC The CBI’s website is a useful source of information: http://www.cbi.org.uk/home.html See Bercusson, above n 14 Above nn 11 and 12 Case C-173/99 R (on the application of BECTU) v Secretary of State for Trade and Industry [2001] IRLR 559 (ECJ) 245 246 What next? a qualifying period on those claiming their four weeks of paid annual leave under the Working Time Directive,20 illustrates the role of litigation before the ECJ Nevertheless, it would be too simplistic to portray unions as pursuing workers’ rights at the expense of all other considerations Unions have been given significant opportunities to participate in the legislative process, both at EU level through the social dialogue, and at national level through consultation with the government This involves making concessions and reaching compromises as well as putting forward the case for workers’ rights We saw in chapter that the courts have long been regarded with suspicion by trade unions and by many labour lawyers Their use of contract doctrine (and their emphasis on the ideology of freedom of contract) often leads to a perception that they are favouring employers over workers And their emphasis on the individual makes it difficult for them to deal with collective interests such as the claims of trade unions Are there signs of change? One important factor to consider is the impact of the HRA 1998 On the one hand, this may make the courts more focused on the needs of workers because they will have to consider cases explicitly in terms of workers’ rights They will also have to take into account the Strasbourg jurisprudence, some of which has favoured workers On the other hand, many commentators are sceptical about the value of the Act They point out that the rights themselves, particularly as interpreted by the Strasbourg court, are rights for individuals There is virtually no emphasis on collective interests or on the role of trade unions Moreover, the UK courts are regarded as having been so far relatively cautious in their use of the HRA 1998 Another important factor is the impact of EU law The domestic courts are bound by the jurisprudence of the ECJ so they have less room to develop their own lines of reasoning And much of that jurisprudence is quite strongly protective of workers’ rights Of course, there are exceptions – commentators have criticised the justification test in discrimination law as applied both domestically and by the ECJ – but on the whole, EU law does encourage the courts to favour workers This is reflected in the litigation strategies of trade unions, discussed above Predicting the future is, of course, a dangerous game Perhaps all that can be said with certainty is that labour law will continue to reflect compromises between the advocates of regulation (whether they are using rights or economics arguments) and the advocates of deregulation Which camp will be able to claim victory on any particular issue will depend on a whole host of factors, such as the political complexion of the government of the day, the attitudes of employers, the Strasbourg jurisprudence and the litigation strategies of trade unions The purpose of this chapter has been to show that the perspectives used throughout this book will help you not only to analyse today’s labour law, but also to analyse the labour law of the future, whatever shape it may take 20 Directive 93/104/EC Index Access to employment trade union membership, and, 206–207 Affirmative action English law, 131 generally, 125–126 Age discrimination English law, 129 generally, 122 Agency worker generally, 76 minimum wages, 93 Anti-discrimination dismissal, and, 160 economics perspectives arguments against intervention, 116–119 arguments in favour of legislation, 119–121 introduction, 116 English law introduction, 127 justification for discrimination, 133–135 nature of discrimination, 130–132 protected persons, 127–130 fixed-term workers, and, 92 further reading, 135–136 human rights, and, 41 ILO regulation, and, 56–58 introduction, 116 promotion of workers’ rights, and, 5–6 rights perspectives introduction, 121 justification for discrimination, 126–127 nature of discrimination, 123–126 protected persons, 122–123 self-employed persons, and, 89 working time, and, 95 ‘As required’ workers generally, 77 Assembly human rights, and, 41 Association ECHR regulation, and, 60 EU regulation, and, 63 human rights, and freedom to join trade union, 42 generally, 40–41 ILO regulation, and, 56 Atypical workers generally, 76–78 introduction, 75 specific problems, 92–93 Ballots industrial action, and, 229–231 Bill of Rights human rights, and, 36 Birth anti-discrimination, and, 122 Bounded rationality economic implications, and, 20 Breach of contract industrial action, and, 233 Burdens on business history of labour law, and, 13–14 Capacity dismissal, and, 160 Casual workers employees, and, 85 generally, 77 CEDAW anti-discrimination, and, 123–125 equal pay, and, 144 human rights, and, 38 leave, and, 101–103 Central Arbitration Committee (CAC) collective bargaining, and, 184–185 Child labour ILO regulation, and, 56 Civil and political rights background, 39–40 collective bargaining, and, 175–176 generally, 40–42 worker participation, and, 174 Closed shop economics perspectives, 205–206 protection of workers’ rights, and, 11–12 rights perspectives, 200–202 247 248 Index Collective bargaining collective laissez-faire, and, economics perspectives arguments against worker participation, 179–181 arguments in favour of worker participation, 181–183 introduction, 179 English law, 183–187 EU regulation, and, 63 further reading, 193–195 ILO regulation, and, 56 industrial action, and, 218 introduction, 174–175 national regulation, and, 68 promotion of workers’ rights, and, protected workers, and, 81 rights perspectives, 175–177 strikes, and, 218 trade union membership, and, 196 Collective representation economics perspectives arguments against worker participation, 179–181 arguments in favour of worker participation, 181–183 introduction, 179 English law collective bargaining, 183–187 consultation, 187–193 EU regulation, and, 63 further reading, 193–195 introduction, 174–175 protected workers, and, 81 rights perspectives collective bargaining, 175–177 consultation, 177–178 Collective laissez-faire demise of, 4–10 generally, 3–4 wages, and, 137 Compulsory membership trade unions, and, 213 Conduct dismissal, and, 160 Consultation and information rights economics perspectives arguments against worker participation, 179–81 arguments in favour of worker participation, 181–183 introduction, 179 English law, 187–193 further reading, 193–195 human rights, and, 44 introduction, 174–175 protected workers, and, 81 regulation, and, 63 rights perspectives, 177–178 Control test employees, and, 85–86 Course of dealing employees, and, 85 Crowding model economics perspectives, and, 119 Damages dismissal, and, 170–171 Declaration of Fundamental Principles and Rights at Work regulation, and, 55–59 Declaration of Rights of Man and Citizen human rights, and, 36–37 Deferred benefit payment scheme dismissal, and, 157–158 Deregulation history of labour law, and, 13–14 Detrimental treatment trade union membership, and, 207–210 Direct discrimination English law, 130 generally, 123–124 Disability discrimination English law, 128 generally, 122 Discipline trade union members, and, 214–217 Discrimination legislation dismissal, and, 160 economics perspectives arguments against intervention, 116–119 arguments in favour of legislation, 119–121 introduction, 116 English law introduction, 127 justification for discrimination, 133–135 nature of discrimination, 130–132 protected persons, 127–130 fixed-term workers, and, 92 further reading, 135–136 human rights, and, 41 ILO regulation, and, 56–58 introduction, 116 justification, 133–135 English law generally, 126–127 promotion of workers’ rights, and, 5–6 protected persons English law, 127–130 generally, 122–123 rights perspectives introduction, 121 justification for discrimination, 126–127 nature of discrimination, 123–126 protected persons, 122–123 self-employed persons, and, 89 trade union members, and access to employment, 206–207 Index blacklists, 207 dismissal, 210–211 during employment, 207–210 working time, and, 95 Dismissal economics perspectives arguments against regulation, 156–157 arguments in favour of regulation, 157–158 English law eligibility to claim, 164–165 employer’s procedures, 166–168 introduction, 163–164 reasons for dismissal, 165–166 remedies, 168–172 further reading, 172–173 industrial action, and, 234–236 introduction, 155 promotion of workers’ rights, and, regulation, and EU, 63 national, 68 rights perspectives, 158–163 strikes, and, 234–236 trade union members, and, 160 Donovan Commission (1965) strikes, and, 8–9 Economic and social rights background, 39–40 collective bargaining, and, 176 generally, 42–44 Economics perspectives anti-discrimination, and arguments against intervention, 116–119 arguments in favour of legislation, 119–121 introduction, 116 collective representation arguments against worker participation, 179–181 arguments in favour of worker participation, 181–183 introduction, 179 dismissal arguments against regulation, 156–157 arguments in favour of regulation, 157–158 economists’ role, 20–21 further reading, 34–35 industrial action, and, 223–227 introduction, 19 labour markets generally, 23–25 schools of thought, 25–30 macroeconomics introduction, 30–31 productivity, 31–32 unemployment, 32–34 markets, 21–23 microeconomics introduction, 21 labour markets, 23–30 markets, 21–23 persons protected, and, 78–81 productivity, 31–32 role, 34 schools of thought introduction, 25–26 neoclassical economics, 26–27 new institutional economics, 28–30 strikes, and, 223–227 trade union membership, and compulsory membership, 213 discipline, 214–217 discrimination against trade unionists, 206–211 expulsion, 214–217 freedom of association, 206–217 introduction, 205–206 membership rules, 213–214 support of union activities, 211–212 unemployment, 32–34 wages, and equal pay, 141–142 introduction, 138 minimum wage, 138–141 working time, and leave, 98–100 working week, 96–98 ‘Efficiency wage’ theory wages, and, 139–141 Emergency leave generally, 110–111 Employees anti-discrimination, and, 127 definition, 84–87 protected rights, 90–91 Employment at will doctrine dismissal, and, 156 Equal pay economics perspectives, 141–142 English law eligibility, 150–151 employers’ defences, 152–153 enforcement, 150–151 introduction, 149–150 minimum wage, and, 137 promotion of workers’ rights, and EC law, 11 generally, regulation, and, 63 rights perspectives, 144–145 Equality of opportunity anti-discrimination, and, 124 Equality of results English law, 130–131 generally, 124–125 justification of discrimination, and English law, 133 generally, 126 249 250 Index Equality of rights anti-discrimination, and, 121 human rights, and, 43 Ethnic origin anti-discrimination, and, 122 EU Charter of Fundamental Rights anti-discrimination, and introduction, 41 protected persons, 122 collective bargaining, and, 176 consultation, and, 177 consultation and information rights, and, 44 equal pay, and, 144 equality of rights, and, 43 industrial action, and, 219 introduction, 38 postscript, 241 regulation, and, 63–64 strikes, and, 219 unfair dismissal, and, 43 EU Directives consultation, and, 187–189 regulation, and, 64–66 European Convention on Human Rights anti-discrimination, and introduction, 41 protected persons, 122 closed shop, and, 201 collective bargaining, and, 68 freedom of association, and, 40–41 industrial action, and, 220 pay, and, 68 regulation, and, 59–63 strikes, and generally, 220–223 introduction, 68 termination of employment, and, 68 trade union membership, and, 208 European Social Charter (ESC) closed shop, and, 201 collective bargaining, and, 176 consultation, and, 177–178 consultation and information rights, and, 44 dismissal, and, 159–161 equal pay, and, 144 equality of rights, and, 43 freedom to join trade unions, and, 42 generally, 38 industrial action, and, 219 leave, and, 101–102 maternity leave, and, 44 right to work, and, 42 strikes, and, 219 unfair dismissal, and, 43 wages and working conditions, and, 43 European Union globalisation, and, 240–243 pay, and, 68 regulation, and, 63–67 termination of employment, and, 68 European Works Councils consultation, and, 189–193 Expression, freedom of generally, 41 strikes, and, 222 Expulsion trade union members, and, 214–217 Fairness at Work (White Paper, 1998) history of labour law, and, 15 strikes, and, 226 worker participation, and, 182 Family responsibilities, workers with emergency leave, 110–111 flexible working, 112–114 introduction, 108–109 maternity leave, 109 parental leave, 110 paternity leave, 109–110 pay, and, 111–112 persons entitled, 111 Fixed-term worker anti-discrimination, 92 generally, 76–77 Flexibility dismissal, and, 156 Flexible working generally, 112–114 Forced labour ILO regulation, and, 56 strikes, and, 219 Formal equality English law, 130 generally, 123–124 Freedom of assembly human rights, and, 41 Freedom of association ECHR regulation, and, 60 EU regulation, and, 63 human rights, and freedom to join trade union, 42 generally, 40–41 ILO regulation, and, 56 trade union membership, and employers, 197–199 unions, 199–205 workers and employers, between, 206–212 workers and unions, between, 212–217 Freedom of expression human rights, and, 41 Freedom of religion human rights, and, 41 Freedom to join trade union human rights, and, 42 Freelance workers generally, 77 Index Genetic features English law, 128 generally, 122 General Agreement on Tariffs and Trade (GATT) relationship with ILO, 240 Genuine occupational qualification English law, 133 generally, 126–127 Globalisation European Union, and, 240–243 ILO, and, 239–240 introduction, 27 postscript, 238–238 UK, and, 243–246 Health and safety regulation, and, 63 History of labour law collective laissez-faire demise of, 4–10 generally, 3–4 further reading, 17–18 introduction, management of the economy, 7–8 modern approaches, 16–17 1950s, 3–4 1960s and 1970s, 4–10 1980s and 1990s, 10–14 1997 to present, 14–16 promotion and protection of workers’ rights EC law, 10–12 generally, 5–6 reducing burdens on business, 13–14 reducing the number of strikes 1960s and 1970s, 8–10 1980s and 1990s, 12–13 ‘the third way’, 14–16 Holidays working time, and, 100–101 Home workers generally, 77 minimum wage, 93 Homosexuals discrimination, and, 118 Hours of work working time, and, 100–101 Human capital discrimination, and, 117 Human rights anti-discrimination, and introduction, 121 justification for discrimination, 126–127 nature of discrimination, 123–126 protected persons, 122–123 civil and political rights background, 39–40 generally, 40–42 claimants, 45–46 collective representation collective bargaining, 175–177 consultation, 177–178 dismissal, and, 158–163 domestic law, 44–45 economic and social rights background, 39–40 generally, 42–44 further reading, 53 historical development, 36–38 industrial action, and, 219–223 international instruments, 44–45 interpretation of introduction, 45 persons against whom rights be upheld, 46–47 right-holders, 45–46 scope of rights, 47–49 weight of rights, 49–52 introduction, 36 overview, 36 scope, 47–49 strikes, and, 219–223 trade union membership, and employers, 197–199 introduction, 197 unions, 199–205 types civil and political, 40–42 economic and social, 42–44 introduction, 39–40 UN Charter, 37 wages, and equal pay, 144–145 introduction, 142 minimum wage, 142–143 weight, 49–52 working time, and holidays, 100–101 hours, 100–101 introduction, 100 leave, 101–104 ICCPR anti-discrimination, and, 41 background, 39 freedom of association, and generally, 40 trade union membership, 197 introduction, 37 strikes, and, 220–221 trade union membership, and closed shop, 200 generally, 197 ICESCR anti-discrimination, and, 41 background, 39 closed shop, and, 200 equal pay, and, 144 251 252 Index ICESCR (cont.) freedom of association, and generally, 42 trade union membership, 197 hours and holidays, and, 100 industrial action, and, 219 introduction, 37 leave, and, 101 minimum wage, and, 142 right to work, and, 42 strikes, and, 219 trade union membership, and closed shop, 200 generally, 197 membership criteria, 203 wages and working conditions, and, 42–43 Immunity industrial action, and, 229–232 Income effect labour markets, and, 23 Incomes policies management of the economy, and, Indirect discrimination English law, 130–131 generally, 124–125 Industrial action economics perspectives, 223–227 English law individual strikers, 233–236 strike organisers, 227–233 EU regulation, and, 63 further reading, 236–237 history of labour law, and 1960s and 1970s, 8–10 1980s and 1990s, 12–13 introduction, 218–219 national regulation, and, 68 rights perspectives, 219–223 trade union membership, and, 203–204 Information and consultation economics perspectives arguments against worker participation, 179–181 arguments in favour of worker participation, 181–183 introduction, 179 English law, 187–193 further reading, 193–195 human rights, and, 44 introduction, 174–175 protected workers, and, 81 regulation, and, 63 rights perspectives, 177–178 Interim injunctions industrial action, and, 232 International and regional regulation ECHR, 59–63 European Union, 63–67 International Labour Organisation, 55–59 introduction, 55 International Covenant on Civil and Political Rights anti-discrimination, and, 41 background, 39 freedom of association, and generally, 40 trade union membership, 197 introduction, 37 strikes, and, 220–221 trade union membership, and closed shop, 200 generally, 197 International Covenant on Economic, Social and Cultural Rights anti-discrimination, and, 41 background, 39 closed shop, and, 200 equal pay, and, 144 freedom of association, and generally, 42 trade union membership, 197 hours and holidays, and, 100 industrial action, and, 219 introduction, 37 leave, and, 101 minimum wage, and, 142 right to work, and, 42 strikes, and, 219 trade union membership, and closed shop, 200 generally, 197 membership criteria, 203 wages and working conditions, and, 42–43 International Labour Organisation (ILO) Conventions anti-discrimination, and, 124 collective bargaining, and, 68, 176 dismissal, and, 159–161 equal pay, and, 145 hours and holidays, and, 100–101 human rights, and, 37 leave, and, 101–103 industrial action, and, 220 minimum wage, and, 143 pay, and, 68 regulation, and, 55–59 strikes, and, 68, 220 termination of employment, and, 68 trade union membership, and closed shop, 200–201 detrimental treatment, 209 facilities for representatives, 199 generally, 197–198 membership criteria, 202–203 participation in activities, 204 Job security dismissal, and, 156 Index Kahn-Freund (Otto) history of labour law, and, 3–4 Labour law economic perspectives and see Economic perspectives economists’ role, 20–21 further reading, 34–35 introduction, 19 macroeconomics, 30–34 microeconomics, 21–25 role, 34 schools of thought, 25–30 historical development and see History of labour law further reading, 17–18 introduction, modern approaches, 16–17 1950s, 3–4 1960s and 1970s, 4–10 1980s and 1990s, 10–14 1997 to present, 14–16 human rights perspectives and see Human rights further reading, 53 interpretation of rights, 45–52 introduction, 36 overview, 36–45 regulation and see Regulation further reading, 71–72 international and regional, 55–67 introduction, 54 national, 67–71 Labour markets generally, 23–25 neoclassical economics, 26–27 new institutional economics, 28–30 schools of thought, 25–26 Leave economics perspectives, and, 98–100 emergency leave, 110–111 flexible working, 112–114 introduction, 108–109 maternity leave, 109 parental leave, 110 paternity leave, 109–110 pay, and, 111–112 persons entitled, 111 rights perspectives, and, 101–104 Maastricht Treaty promotion of workers’ rights, and, 10 Mainstreaming discrimination, and, 132 Married persons anti-discrimination, and, 128 Macroeconomics introduction, 30–31 productivity, 31–32 unemployment, 32–34 Management of the economy history of labour law, and, 7–8 Markets microeconomics, and, 21–23 Maternity leave dismissal, and, 160 generally, 109 human rights, and, 44 working time, and, 101–102 Membership rules trade unions, and, 213–214 Microeconomics introduction, 21 labour markets, 23–30 markets, 21–23 Minimum wage agency workers, 93 economics perspectives, 138–141 English law enforcement, 146–147 entitlement, 146–147 introduction, 145–146 rate, 147–149 homeworkers, 93 rights perspectives, 142–143 Misconduct dismissal, and, 157 Motivation dismissal, and, 156 Mutuality of obligation employees, and, 84–85 workers, and, 87 National minimum wage agency workers, 93 economics perspectives, 138–141 English law enforcement, 146–147 entitlement, 146–147 introduction, 145–146 rate, 147–149 homeworkers, 93 rights perspectives, 142–143 National origin anti-discrimination, and, 122 National regulation generally, 67–68 modes, 68–71 Neoclassical economics atypical workers, and, 77–84 dismissal, and, 155 economic perspectives, and, 26–27 wages, and, 137 working time, and, 95–96 253 254 Index New institutional economics atypical workers, and, 77–84 dismissal, and, 155 economic perspectives, and, 28–30 wages, and, 137–138 Occupational qualification English law, 133 generally, 126–127 Parental leave generally, 110 history of labour law, and, 15 working time, and, 95 Parol evidence rule national regulation, and, 69 Participation in activities trade union members, and, 203–205 Part-time workers history of labour law, and, 15 working time, and, 104–108 Paternity leave generally, 109–110 working time, and, 95 Pay and see Wages EU regulation, and, 63 industrial action, and, 233–234 leave, and, 111–112 national regulation, and, 67–68 Performance pay wages, and, 141 Persons protected anti-discrimination, and English law, 127–130 generally, 122–123 atypical workers generally, 76–78 introduction, 75 specific problems, 92–93 economics perspectives, 78–81 further reading, 94 introduction, 75–76 rights perspectives, 81–84 scope of law employees, 84–87 introduction, 84 purpose of definitions, 89–91 self-employed people, 88–89 workers, 87–88 typical and atypical workers, 76–78 Political opinion anti-discrimination, and, 122 Political rights background, 39–40 generally, 40–42 Positive discrimination English law, 131 generally, 126 Pregnancy dismissal, and, 160 Price-wage spiral management of the economy, and, Private and family life regulation, and, 60 Productivity macroeconomics, and, 31–32 Promotion and protection of workers’ rights history of labour law, and EC law, 10–12 generally, 5–6 human rights, and, 38–39 Public law national regulation, and, 70 Race discrimination economics perspectives arguments against intervention, 116–119 arguments in favour of legislation, 119–121 introduction, 116 English law introduction, 127 justification for discrimination, 133–135 nature of discrimination, 130–132 protected persons, 127–130 fixed-term workers, and, 92 further reading, 135–136 human rights, and, 41 ILO regulation, and, 56–58 introduction, 116 justification, 133–135 English law generally, 126–127 promotion of workers’ rights, and, 5–6 protected persons English law, 127–130 generally, 122–123 rights perspectives introduction, 121 justification for discrimination, 126–127 nature of discrimination, 123–126 protected persons, 122–123 self-employed persons, and, 89 working time, and, 95 Reasons for dismissal statutory controls, 165–166 Redundancy compensation, and, 171–172 Re-employment dismissal, and, 170 Regulation Declaration of Fundamental Principles and Rights at Work, 55–59 EU Charter of Fundamental Rights, 63–64 EU Directives, 64–66 European Convention on Human Rights, 59–63 European Union, 63–67 Index further reading, 71–72 international and regional ECHR, 59–63 European Union, 63–67 ILO, 55–59 introduction, 55 International Labour Organisation, 55–59 introduction, 54 national generally, 67–68 modes, 68–71 Treaty of Rome, 63 Reinstatement dismissal, and, 161, 170 Religion anti-discrimination, and English law, 128 generally, 122 human rights, and, 41 regulation, and, 60 Rest breaks working time, and, 95 Risk test employees, and, 86 Right to work human rights, and, 42 Rights perspectives anti-discrimination, and introduction, 121 justification for discrimination, 126–127 nature of discrimination, 123–126 protected persons, 122–123 civil and political rights background, 39–40 generally, 40–42 claimants, 45–46 collective representation collective bargaining, 175–177 consultation, 177–178 dismissal, and, 158–163 domestic law, 44–45 economic and social rights background, 39–40 generally, 42–44 further reading, 53 historical development, 36–38 industrial action, and, 219–223 international instruments, 44–45 interpretation of introduction, 45 persons against whom rights upheld, 46–47 rights-holders, 45–46 scope of rights, 47–49 weight of rights, 49–52 introduction, 36 overview, 36 scope, 47–49 strikes, and, 219–223 trade union membership, and employers, 197–199 introduction, 197 unions, 199–205 types civil and political, 40–42 economic and social, 42–44 introduction, 39–40 UN Charter, 37 wages, and equal pay, 144–145 introduction, 142 minimum wage, 142–143 weight, 49–52 working time, and holidays, 100–101 hours, 100–101 introduction, 100 leave, 101–104 Rule of law history of labour law, and, 17 Secondary action industrial action, and, 228–229 Self-employed anti-discrimination, and, 127 definition, 88–89 protected rights, 89 Sex discrimination economics perspectives arguments against intervention, 116– 119 arguments in favour of legislation, 119–121 introduction, 116 English law introduction, 127 justification for discrimination, 133–135 nature of discrimination, 130–132 protected persons, 127–130 fixed-term workers, and, 92 further reading, 135–136 human rights, and, 41 ILO regulation, and, 56–58 introduction, 116 justification, 133–135 English law generally, 126–127 promotion of workers’ rights, and, 5–6 protected persons English law, 127–130 generally, 122–123 rights perspectives introduction, 121 justification for discrimination, 126–127 nature of discrimination, 123–126 protected persons, 122–123 self-employed persons, and, 89 working time, and, 95 255 256 Index Sexual orientation English law, 128 generally, 122 Shirking minimum wage, and, 140 ‘Shock’ theory wages, and, 139–140 Shop stewards trade union membership, and, 198 Social Chapter regulation, and, 65 Social Contract strikes, and, 9–10 Social rights background, 39–40 generally, 42–44 Statistical discrimination economics perspectives, and, 119 Strikes economics perspectives, 223–227 English law individual strikers, 233–236 strike organisers, 227–233 EU regulation, and, 63 further reading, 236–237 history of labour law, and 1960s and 1970s, 8–10 1980s and 1990s, 12–13 introduction, 218–219 national regulation, and, 68 rights perspectives, 219–223 trade union membership, and, 203–204 Substitution effect labour markets, and, 23 Sunday working ECHR, and, 60 Taff Vale case history of labour law, and, Teleworkers generally, 77 guidance, 92–93 Termination of employment dismissal economics perspectives, 156–158 English law, 163–172 further reading, 172–173 industrial action, and, 234–236 introduction, 155 promotion of workers’ rights, and, rights perspectives, 158–163 strikes, and, 234–236 trade union members, and, 160 EU regulation, and, 63 national regulation, and, 68 Trade disputes industrial action, and, 228 Trade union membership closed shops, 200–202 compulsory membership, 213 criteria, 202–203 discipline of union members, 214–217 discrimination against trade unionists access to employment, 206–207 blacklists, 207 dismissal, 210–211 during employment, 207–210 dismissal, and, 160 economics perspectives compulsory membership, 213 discipline, 214–217 discrimination against trade unionists, 206–211 expulsion, 214–217 freedom of association, 206–217 introduction, 205–206 membership rules, 213–214 support of union activities, 211–212 employers’ duties facilities, 198–199 support of union activities, 211–212 English law access to employment, 206–207 blacklists, 207 compulsory membership, 213 discipline, 214–217 dismissal, 210–211 during employment, 207–210 expulsion, 214–217 membership rules, 213–214 support of union activities, 211–212 expulsion of union members, 214–217 freedom not to join, 200–202 freedom of association employers, 197–199 unions, 199–205 workers and employers, between, 206–212 workers and unions, between, 212–217 further reading, 217 human rights, and, 42 introduction, 196–197 membership rules, 213–214 participation in activities, 203–205 protection of workers’ rights, and, 11–12 rights perspectives employers, 197–199 introduction, 197 unions, 199–205 strikes, and, 203–204 support of union activities, 211–212 Transsexuals anti-discrimination, and, 128 Treaty of Rome 1957 human rights, and, 38 regulation, and, 63 Index UN Charter human rights, and, 37 UN Universal Declaration of Human Rights civil and political rights anti-discrimination, 41 freedom of association, 40 closed shop, and, 200–201 economic and social rights freedom to join trade unions, 42 right to work, 42 wages and working conditions, 42–43 hours and holidays, and, 100 introduction, 37 minimum wage, and, 142–143 trade union membership, and, 200–201 Unemployment macroeconomics, and, 32–34 Unfair dismissal eligibility to claim, 164–165 employer’s procedures, 166–168 human rights, and, 43 industrial action, and, 235 introduction, 163–164 national regulation, and, 70 reasons for dismissal, 165–166 remedies, 168–172 strikes, and, 235 Union membership closed shops, 200–202 compulsory membership, 213 criteria, 202–203 discipline of union members, 214–217 discrimination against trade unionists access to employment, 206–207 blacklists, 207 dismissal, 210–211 during employment, 207–210 dismissal, and, 160 economics perspectives compulsory membership, 213 discipline, 214–217 discrimination against trade unionists, 206–211 expulsion, 214–217 freedom of association, 206–217 introduction, 205–206 membership rules, 213–214 support of union activities, 211–212 employers’ duties facilities, 198–199 support of union activities, 211–212 English law access to employment, 206–207 blacklists, 207 compulsory membership, 213 discipline, 214–217 dismissal, 210–211 during employment, 207–210 expulsion, 214–217 membership rules, 213–214 support of union activities, 211–212 expulsion of union members, 214–217 freedom not to join, 200–202 freedom of association employers, 197–199 unions, 199–205 workers and employers, between, 206–212 workers and unions, between, 212–217 further reading, 217 human rights, and, 42 introduction, 196–197 membership rules, 213–214 participation in activities, 203–205 protection of workers’ rights, and, 11–12 rights perspectives employers, 197–199 introduction, 197 unions, 199–205 strikes, and, 203–204 support of union activities, 211–212 Wages and see Pay economics perspectives equal pay, 141–142 introduction, 138 minimum wage, 138–141 English law equal pay, 149–153 introduction, 145 minimum wage, 145–149 equal pay economics perspectives, 141–142 English law, 149–153 rights perspectives, 144–145 further reading, 153–154 human rights, and, 43 industrial action, and, 233–234 introduction, 137–138 minimum wage economics perspectives, 138–141 English law, 145–149 rights perspectives, 142–143 regulation, and, 63 rights perspectives equal pay, 144–145 introduction, 142 minimum wage, 142–143 Wages Councils burdens on business, and, 13–14 generally, 137 Women human rights, and, 38 Worker participation collective representation arguments against, 179–181 arguments in favour, 181–183 introduction, 179 257 258 Index Worker participation (cont.) English law collective bargaining, 183–187 consultation, 187–193 EU regulation, and, 63 further reading, 193–195 introduction, 174–175 protected workers, and, 81 rights perspectives collective bargaining, 175– 177 consultation, 177–178 Workers anti-discrimination, and, 127 definition, 87–88 protected rights, 90 Workers’ rights human rights, and, 38–39 promotion EC law, 10–11 generally, 5–6 protection, 11–12 Working conditions human rights, and, 43 regulation, and, 63 Working time economics perspectives leave, 98–100 working week, 96–98 family responsibilities, 108–114 further reading, 114–115 holidays, 100–101 hours, 100–101 introduction, 95–96 leave economics perspectives, 98–100 rights perspectives, 101–104 rights perspectives holidays, 100–101 hours, 100–101 introduction, 100 leave, 101–104 rules applicability, 104–108 family responsibilities, 108–114 introduction, 104 working week, 96–98 Working week working time, and, 96–98 World Trade Organisation (WTO) relationship with ILO, 240 Wrongful dismissal eligibility to claim, 164–165 employer’s procedures, 166–168 introduction, 163–164 reasons for dismissal, 165–166 remedies, 168–172 Zero-hours workers generally, 77