Modern Employment Law

Charles Barrow, Ann Lyon

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317499275
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Modern Employment Law covers all aspects relating to the employment relationship between employer and employee at both individual and collective levels. All chapters are absorbing and exact, with nuanced topics such as unfair dismissal, discrimination and trade union law being explored from several different angles. Pedagogical features such as Thinking points and Further reading sections enable students to consolidate and extend their knowledge.

Though primarily aimed at LLB students, this book offers a wide-ranging, accurate, authoritative, contemporary and readable guide to modern employment law for all students of the subject, at both undergraduate and postgraduate level.

Although a collaborative effort, each author focused on specific areas of employment law. Ann Lyon examined the statutory rights of employees including topics such as redundancy, unfair dismissal and discrimination and equal pay issues. Charles Barrow had primary responsibility for the introduction, the majority of the contract of employment chapters and the collective aspects of employment law.

Chapter 1
Introduction, historical overview and the institutions of employment law

Chapter contents

1.1 Overview

1.2 Employment law – introduction

1.3 Employment law – a historical overview

1.4 The institutions of employment law

1.5 Further reading

1.1 Overview

This chapter considers the historical background to the development of modern employment law and examines the operation of the institutions of employment law that advise on employment issues or adjudicate on and settle employment disputes.

• From the middle ages to the industrial revolution the state controlled the employment relationship through legislation that regulated wages and criminalised workers who left employment or who agitated for higher pay.
• Skilled workers were able to protect their position through the guilds or through self-help groups set up to petition Parliament or JPs to set higher wages. But direct action was criminalised as a common law conspiracy.
• A feature of the industrial revolution was further conflict with the property-owning classes and the state. The Combination Acts of 1799 and 1800 further criminalised workers’ organisations.
• Government during the mid-period of the Victorian era did pass social legislation to limit the worst excesses of the factory system but it was not until unions obtained freedom to organise after the passage of the Conspiracy and Protection of Property Act 1875 that some workers gained the benefits of union representation.
• Employers were able to use the new common law civil liabilities developed by the judiciary to limit union influence at the workplace. It was not until 1906 that industrial action to enforce collective bargaining became lawful.
• The modern contract of employment developed from the late nineteenth century onwards with the abolition of criminal controls over employees; replaced by the regulation of the employment relationship by judicial enforcement of contractual obligations.
• After 1906 trade union representation and collective bargaining became an accepted aspect of the employment relationship. The fledging ‘voluntarist’ system of industrial relations now developed, based on the non-intervention of the law in industrial disputes and on free collective bargaining between the parties.
• In the 1960s the economy deteriorated, and in order to solve the issue of increased industrial action, the Conservative government introduced the Industrial Relations Act 1971 – which reversed ‘voluntarism’ by introducing legal controls over trade union activity.
• On the election of a new Labour government in 1974 legislative initiatives were introduced to support collective bargaining. On the fall of the government in 1979 many of these provisions were repealed. The new Conservative regimes (in power from 1979 until 1997) followed a legal strategy that limited and regulated trade union activity and looked to reduce individual rights where possible.
• The New Labour government from 1997 introduced new rights at the collective and individual level, including the right to recognition and new unfair dismissal and ‘family friendly’ rights.
• The coalition government, formed in 2010, undertook a review of individual employment law resulting in reforms to unfair dismissal procedure introduced by the Enterprise and Regulatory Reform Act 2013.
• The Conservative administration, elected in May 2015, has introduced far reaching additional regulation of trade unions through the Trade Union Act 2016.
• A number of specialist institutions exist in this field. The Certification Officer plays an important part in regulating trade unions; ensuring that unions follow their rule book and that the numerous statutory rules that apply to unions are complied with. The Advisory, Conciliation and Arbitration Service’s (ACAS) role is to promote the improvement of industrial relations by engaging in the conciliation of disputes at the collective and individual level and to arbitrate on disputes where the parties have agreed. The Central Arbitration Committee’s (CAC) main function is to oversee, administer and determine a recognition application under the Employment Relations Act 1999.
• The vast majority of employment disputes start in the employment tribunal. They were originally intended to provide for a system of quick informal dispute resolution. The complexity of current law has meant that they operate more like employment courts. Appeals from an employment tribunal proceed to the Employment Appeal Tribunal (EAT).

1.2 Employment law – introduction

Employment law regulates the individual relationship between employers and workers and the collective relationship between employers, workers and trade unions. These legal relationships are governed by a variety of sources including the contract of employment individually agreed by the employer and employee (or by a trade union with the employer on the employee’s behalf through the mechanism of the collective agreement) and by a wealth of domestic statutory provisions, case law and European Union initiatives that, over the last 30 years, have transformed the nature of the subject.

To better understand the interrelationship between the different sources of law and the contemporary structure of employment law it is helpful to be aware of the historical perspective. Historical perspective also assists us in understanding the political and industrial dynamic that has informed the development of modern employment law; particularly employment protection legislation introduced to soften the often-one-sided common law ‘contract of service’. Historically, the employment relationship at the individual level was based on the rights of the ‘master’ over his ‘servant’; limited, by late Victorian times, by the power of collective bargaining where the worker was a member of a trade union recognised by the employer. Thus, much of the early emphasis of the law concerns the fight for the legality of trade unions – the institutions that were striving to actively protect employees at the workplace through collective bargaining and direct representation.

Partly due to the influence of the trade union movement, who preferred to protect their members through industrial strength and collective bargaining rather than by parliamentary intervention, the state did not legislate to secure workers’ interests at the individual level in any substantial way until the mid-1960s. It was from this period that the pace of legal intervention in the employment relationship quickened. Modern employment law, as we identify it today, developed at speed after the United Kingdom’s accession to the European Community (as was) in 1972; with domestic statutes and European initiatives overlaying the common law with a myriad of regulatory provisions at the individual and collective level. It is these individual and collective employment law provisions – that regulate the contemporary employment relationship – which this book intends to subject to detailed legal analysis.

1.3 Employment law – a historical overview

1.3.1 From the Middle Ages to the Industrial Revolution

Prior to the enormous changes to the economy that occurred with the onset of the Industrial Revolution in the late eighteenth and early nineteenth centuries, the British economy was predominantly agrarian, serviced by a vast pool of unskilled labour. The unskilled labourers were serfs – owned and controlled by their masters. The few skilled workers were known as journeymen, who traditionally plied their trades travelling around the local district. They were members of a craft association or guild and were employed by a master craftsman after serving a lengthy apprenticeship. The ‘contract of employment’ as known today did not exist – rather, the relationship between the two parties was described as between ‘master’ and ‘servant’ with punitive laws regulating the activities of the ‘servant’.

The advent of the Black Death in the fourteenth century decimated the working population and the resulting shortage of labour triggered demands for higher wages from both the skilled and the unskilled. The response of the state to this unwanted development was the passage of legislation (the Statute of Labourers 1349 and 1351) that regulated wages and criminalised workers who agitated for higher pay or left their work without permission.

The Tudor and Stuart eras were marked by ever increasing regulation of the economy with the imposition of further wage and price controls through the Statute of Artificers 1563. This Act gave local JPs the authority to fix the wages of both skilled and unskilled labour and, like previous regulatory statutes it was an offence to break an agreement with the employer. Under this legislation, wage fixing for the skilled worker became a form of minimum wage – exceeded where masters could be persuaded, through the power of the guild system or by labour scarcity, to improve the established wage. For the agricultural labourer, however, wage fixing underlined their subservient status as, with no skill to sell, there was usually little need for employers to enhance the pay above the very low subsistence rates set by JPs.¹

However, over time, the power of the guilds to fix wages and other conditions of work and to protect the customs of the trade was seriously weakened by the extensive regulation of the economy. It was because of the failure of the guilds to adjust to the new conditions of production and to protect the interests of journeymen against the iniquities of wage fixing that groups of journeymen initiated self-help groups that eventually evolved into the first forms of trade unions.

Locally based associations of journeymen had previously existed for recreational and social purposes. The failure of wage fixing to secure acceptable living standards transformed these associations, in the late seventeenth and early eighteenth centuries, into societies and clubs for the provision of mutual insurance benefits against sickness, unemployment, old age and death. These self-help groups were the forerunners of what later became known as ‘friendly societies’ and spread widely across the country throughout the eighteenth and nineteenth centuries. The more permanent social clubs or friendly societies were transformed into pressure groups to petition Parliament or local JPs to act on their powers of wage fixing. Where these groups agitated for improved pay and conditions the courts declared their actions unlawful as a criminal common law conspiracy,² and Parliament proscribed their activities with a series of statutes targeted at specific trades.³

An important factor in the development of trade associations during the latter part of the eighteenth century was the response by skilled workers to the changing economic conditions. As the control economy of the seventeenth and early eighteenth centuries was discredited by the new ideas of economic laissez-faire, wage fixing declined and lapsed into disuse, eventually being formally discontinued in 1813. This breakdown of wage fixing, combined with the disintegration of the guild system, meant that skilled workers, when they were dissatisfied with their wages, increasingly directed their demands for redress to employers rather than relying on the system of petitioning Parliament or JPs.

The skilled worker, in adjusting to the new economic realities created by the system of industrial production (with increased specialisation and new methods of machine based work), soon recognised that their bargaining strength was heightened when workers acted in consort. Consequently, despite residual illegality and hostile employers, by the beginning of the nineteenth century a form of organised craft unionism had grown out of the original journeymen trade associations and societies.

1.3.2 The Industrial Revolution

A feature of the early years of the Industrial Revolution was the rise in the demand for both unskilled and skilled labour as the economy grew. The demand for unskilled labour was satisfied by the movement of agrarian labourers to the industrial centres, creating an urban working class. The demand for skilled labour encouraged local autonomous trade associations to take advantage of these economic conditions to flex their newly acquired influence. However, to the owners of capital, combinations of workers were a threat to the profitability of the factories and trade: to the property-owning classes, they were agents of revolution and a threat to political stability. Parliament reacted to the continuing spread of trade unionism by passing the Combination Acts of 1799 and 1800 – criminalising workers’ organisations in all trades or occupations by imposing a penalty of 3 months’ imprisonment for those who interfered with an employer’s business or the employment of workers.

As direct union activities were proscribed, the only alternative for the new workers in the mills and factories was to follow the path beaten by the older craft associations, by either banding together lawfully for the purposes of mutual welfare through friendly societies, or by organising unlawfully in secret in order to avoid suppression from the authorities and victimisation from employers. It was for organising in secret that five agricultural labourers in Dorset, known as the Tolpuddle Martyrs, were prosecuted and sentenced in 1834 to 7 years’ transportation to Australia under the Unlawful Oaths Act 1797, which made it an offence to swear unlawful oaths for seditious purposes.

Employers and opponents of trade unions also had other weapons to suppress organised labour. The Master and Servants Act 1823 provided that a servant who was absent from their job before the expiry of their contract committed a criminal offence punishable by 3 months’ imprisonment. It was thus unlawful for a servant to pressurise an employer to improve wages and conditions as each individual worker who followed a strike call was personally open to prosecution. Paradoxically, it was at this time that the state initiated the first forms of social legislation to regulate the worst aspects of the early Victorian factory system. The Factories Act 1844 restricted the working hours of women and children in the textile industry, and the Mines Regulation Act 1842 barred women and children from working underground. Parliament was, however, wary of interfering with the employment conditions of adult males and it was not until the end of the century with the passage of the Factories and Works...