Unlocking Employment Law

Chris Turner

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781138463325
• eBook ISBN: 9781134649747
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A new volume in the successful Unlocking the Law series on this fascinating and dynamic area of law, containing the essential recent developments, including the Equality Act 2010. Each chapter opens with aims and objectives and contains activities such as quick quizzes and self-test questions, key facts charts, diagrams to aid learning and numerous headings and sub-headings to make the subject manageable. Features include summaries to check your understanding of each chapter, a glossary of legal terminology, essay questions with answer plans and exam questions with guidance on answering. All titles in the series follow the same formula and include the same features so students can move easily from one subject to another. The series covers all the core subjects required by the Bar Council and the Law Society for entry onto professional qualifications as well as popular option units.Resources supporting this book are available online at www.unlockingthelaw.co.uk.

1
The origins of modern employment law

Aims and Objectives

After reading this chapter you should be able to:

• ■ Understand where regulation of employment practices originated
• ■ Understand the very different patterns of work that emerged with the growth of industrialism
• ■ Understand how and why as a result more specific regulation developed in the wake of the Industrial Revolution both by statute and through the common law
• ■ Understand how and why employment protection through legislation emerged in the twentieth century
• ■ Understand the reasons for advances and reductions in employment rights in the modern employment context
• ■ Be able to critically appreciate the historical development of laws on employment

1.1 The origins of the regulation of employment

It would be easy to imagine that employment law is a very modern development in the legal system of the UK, perhaps a development out of the welfare reforms of the 1940s or resulting from the strength of the trade unions in the 1960s and 1970s and the additional protections given to a range of groups including consumers during that time as well as employees.

This would be a reasonable mistake to make but nevertheless it is to ignore the historical development of regulation of employment.

Legal regulation of employment in fact goes back as far as the so-called Statute of Labourers in 1349. Obviously the medieval guilds (in some ways the forerunners of the modern trade unions) had a major impact on the regulation of employment practices also. However, these were internal regulation of specific trades, concerned apprenticeships, methods of work and trading and were often protectionist in nature but not specifically reinforced by law.

The major regulation of employment or work prior to the onset of industrialism in the eighteenth century was the Statute of Artificers and Apprentices 1562.

1.1.1 The Statute of Artificers and Apprentices 1562

The statute (subtitled ‘An Act touching divers Orders for Artificers, Labourers, Servants of Husbandry and Apprentices’ - itself a comprehensive description) was a comprehensive piece of legislation which in section 1 repeals all previous law on the subject. S1 also identifies the aim of the legislation:

Section 3 demonstrates just how comprehensive the legislation was in terms of whom it affected when considered in the context of the available areas of work at the time.

Although we may not recognise many of these trades today, the list does cover most of the trades that would have been operating at that time. Several trades at the start of the list represent the sixteenth century woollen and clothing industry which was the main export income of the time.

Even then the Act goes on to state that it should be used as the 'standard means of regulating all forms of employment’ at the time, so it was a truly comprehensive piece of legislation.

Section 4 goes on to state that all people capable of working and not sustained by independent means, in other words having no private wealth or income, could be compelled to work by an independent order of two Justices of the Peace (the forerunner of the modern magistrates). In this way it was a massively different attitude to work compared to our present day welfare state.

Further provisions found in sections 5–8 bind servants to their masters so that no master could 'put away' his servant and nor could a servant leave his work until it was completed. (Master and servant were the words used to describe employers and employees right up to the early twentieth century.) Besides this a servant who left his master could be imprisoned and a servant fleeing to another area could be caught and returned under a writ known as capias.

An interesting contrast with modern employment conditions is found in section 12. This specifies working hours, particularly in the case of agricultural labourers who would have accounted for a large portion of the working population at that time. The section required that labourers should be present at their work during the months from March through to September between 5.00 a.m. and 8.00 p.m. This provision covered all workers between the ages of twelve and sixty.

Section 13 required that all of the work should be finished before a workman could 'quit' his work. Much later, in the nineteenth century, this provision was frequently used as a means of checking trade union activity. Manchester has argued in fact in Modern Legal History that the use of this section of the old Act had a more profound effect than the hated Combination Laws.

Another significant purpose of the legislation was to provide a standard means for regulating wages. This is found in section 15 which gives Justices of the Peace the authority to 'limit, rate, and appoint' wages. In setting a wage the justices were required to take account of the 'plenty or scarcity of the time and other circumstances necessarily to be considered'. In other words wages were determined according to the current economic circumstances. This is obviously massively different to the way that wages are determined in the modern economy. Besides this, under section 18, a master who failed to pay the wage that the justices had decided could be fined, again an enormous difference from the market forces led system that we work under today.

It is an interesting illustration of the imbalance in the employment relationship and the laws regulating it that a master in breach of his contractual obligations to his servant could be fined while a servant in breach of his contractual obligations to his master could be imprisoned.

The second half of the Act deals specifically with apprentices (workers learning their trade) and journeymen (those who had successfully completed an apprenticeship). Apprenticeships were of a fixed seven years and there was a restriction on the number of apprentices that could enter a trade at one time.

The statute, subject to a few later amendments, remained the basis of the law governing employment until well into the eighteenth century when the demands of the Industrial Revolution began to limit its effectiveness. Nevertheless, it shows that, while we commonly emphasise that employment is based on a contractual relationship it has for centuries also been subject to statutory intervention.

1.1.2 The application of the Statute of Artificers and Apprentices 1562 in the eighteenth century

As we have seen above one of the stated aims of the statute was the 'preservation of a reasonable livelihood'. As a result of this many workers in many different trades had grown to rely on its provisions. Even so it is questionable whether it actually enforced or achieved this stated aim and there is evidence of this in the frequency of petitioning for enforcement of its provisions and in case law.

In 1719 the Broad and Narrow Loom Weavers of Stroud petitioned the House of Commons to enforce a 1555 statute regulating weaving. In 1726 members of the Wiltshire and Somerset weaving community petitioned the King over worsening conditions of work. In 1728 Gloucester Weavers petitioned local justices to 'fix a liberal scale of wages for weavers'. Many petitions were unsuccessful.

Besides this, combining (in other words the equivalent of trade unions) to increase wages had always been considered illegal. In R v The Journeymen Taylors of Cambridge (1726) 8 Mod 10, 11. 88 ER 9–10 the court clarified this position:

The conspiracy involved was in fact a petition by the journeymen’s trade association to have the rate of pay set as required under s15 of the statute. It is hard to see how one individual worker would be more able to petition successfully for an enforcement of the law when a petition by the whole group of workers amounted to an unlawful combination.

It is true that petitioning for enforcement of the statute gained some limited success. In 1748 weavers, traditionally the best paid section of the workforce, obtained from Parliament a special prohibition of 'truck' in their trade. 'Truck' was an increasing practice of the time by which employers paid wages in goods, usually in the form of vouchers or tallies that could only be spent in the employers' shops, rather than in money which obviously could be used anywhere. The clear implication and purpose of truck was that it gave the employer another means of regulating or limiting wages by charging higher prices for goods in their shops. A Woollen Cloth Weavers Act in 1756 also allowed justices to fix piecework rates, which the weavers hoped would stop the current practice of cutting down rates and then underselling. In fact the table of wage rates that resulted only created greater conflict, further petitions and cross-petitions from the employers. They were eager to argue the greater benefits to the economy of freedom of contract and unrestrained competition in the industry.

Interestingly following a petition in 1776 by weavers, spinners, scribblers and other woollen trades in Somerset against the introduction of the 'Spinning Jenny', Parliament, which only two centuries before had prohibited the introduction of the 'Gig Mill' would not even accept or read the petition.

The weavers were not the only workers who expressed grievances over worsening conditions and changing methods. There was a Parliamentary enquiry into the stocking making industry. Hatters, a formerly privileged section of the workforce had previously enjoyed protection under the Act through the limiting of the numbers of apprentices. They lost this protection in an amending statute in 1777. It is the removal of the controls on apprentice numbers at a time of increasing population and unemployment that is often blamed by historians such as the Hammonds and the Webbs for the massive increases of unskilled labour.

Increasingly petitioning for enforcement of provisions within the 1562 statute became ineffective or only worked against the interests of the workers of the time, and it is doubtful whether the wage setting and apprenticeship clauses of the statute were in operation at all by the end of the eighteenth century. Despite this, regulations were still introduced in the late eighteenth century where enormous public pressure or even riots made it expedient, as in the 'Spitalfield Acts' of 1765 and 1773. These were passed following mass demonstrations by the London mob when drastic levels of unemployment amongst silk weavers had been blamed on a refusal by employers to follow past regulation in the industry and with an increasing shift towards the import of cheap foreign material.

There is argument between historians over whether there were real and sustained reductions in living standards at the time. E P Thompson in The Making of the English Working Class (Penguin, 1980), in examining the complexity of average circumstances provided in reports of ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Guide to the book
• Acknowledgements
• Preface
• List of figures
• Table of cases
• Table of statutes and other instruments
• Table of legislation
• Table of EU Treaty Articles and legislation
• 1 THE ORIGINS OF MODERN EMPLOYMENT LAW
• 2 THE EFFECTS OF EU MEMBERSHIP ON UK EMPLOYMENT LAW
• 3 INSTITUTIONS AND PROCEDURES
• 4 EMPLOYMENT STATUS
• 5 THE CONTRACT OF EMPLOYMENT
• 6 GARDEN LEAVE AND RESTRAINT OF TRADE
• 7 IMPLIED TERMS
• 8 STATUTORY EMPLOYMENT PROTECTIONS
• 9 PROTECTION FROM DISCRIMINATION: INTRODUCTION (THE EQUALITY ACT 2010)
• 10 PROTECTION FROM DISCRIMINATION (1) EQUAL PAY
• 11 PROTECTION FROM DISCRIMINATION (2) SEX DISCRIMINATION
• 12 PROTECTION FROM DISCRIMINATION (3) RACIAL DISCRIMINATION
• 13 PROTECTION FROM DISCRIMINATION (4) DISABILITY DISCRIMINATION
• 14 PROTECTION FROM DISCRIMINATION (5) RECENT DEVELOPMENTS IN DISCRIMINATION LAW
• 15 PROTECTION FROM DISCRIMINATION (6) PURSUING DISCRIMINATION CLAIMS
• 16 HEALTH AND SAFETY LAW
• 17 GRIEVANCES AND DISCIPLINE
• 18 TUPE TRANSFERS
• 19 TERMINATION OF EMPLOYMENT (1) CONTINUITY, NOTICE AND DISMISSAL
• 20 TERMINATION OF EMPLOYMENT (2) TERMINATION OTHER THAN BY DISMISSAL
• 21 TERMINATION OF EMPLOYMENT (3) WRONGFUL DISMISSAL
• 22 TERMINATION OF EMPLOYMENT (4) UNFAIR DISMISSAL
• 23 TERMINATION OF EMPLOYMENT (5) REDUNDANCY
• 24 EMPLOYMENT RIGHTS RELATED TO TRADE UNION MEMBERSHIP AND NON-MEMBERSHIP
• Appendix 1
• Appendix 2
• Glossary
• Index