Employment Rights - Third Edition / Edition 3

by Richard W. Painter, Keith Puttick, Ann Sumner Holmes

Overview

This new edition of the successful handbook Employment Rights is fully updated and revised to include new material on all recent employment law. Employment Rights is a well-established text and reference point on all aspects of labour law – in particular those outside the legal profession. Coverage is comprehensive and includes recruitment and selection; contracts (and changes to them); wages; discrimination; unfair dismissal and redundancy; health and safety; trade union rights; and work-related benefits. This new edition has been expanded to include coverage of developments such as the Employment Act 2002, Tax Credits Act 2002, EC Employment, Social Policy, the European Convention of Human Rights; and reform of the Disability Discrimination Act 1995 and the Industrial Tribunals Act 1996.

Product Details

ISBN-13:	9780745321240
Publisher:	Pluto Press
Publication date:	11/02/2004
Edition description:	3
Pages:	624
Product dimensions:	5.91(w) x 9.06(h) x 1.40(d)

About the Author

Richard W. Painter is Pro Vice-Chancellor, Faculty of Business and Law, Staffordshire University. He has written widely on employment law.Keith Puttick is a Solicitor and is Principal Lecturer in Law at Staffordshire University. He is a co-author of Civil Appeals.

Read an Excerpt

CHAPTER 1

Employment Rights: Past, Present and Future

Employment Rights: Introductory Observations

A book about peoples' rights at work needs to offer a perspective on the way the current employment law regime has developed, and is developing. This is important, if only because of the rapidity with which policy becomes legislation, and case law and principles develop. It also needs to address the policy trends, and political and economic ideologies, which play such a decisive part in the shaping of employment laws. A commentary on these is part of any meaningful consideration of the subject. Ideology, in particular, is a powerful catalyst for change in the employment field, as seen with Conservative legislation in the 1980s and 1990s. It is also readily apparent in the continuing influence of Third Way thinking on New Labour employment and social policies. In particular, the Third Way sees a 'middle way' between old-style social democratic values and regulation, and a Conservative, neo-liberal deregulatory agenda.

Attempts are made by employment law commentators, from time to time, to chart what those 'old style' values really were, and the transformation from Old Labour to New Labour. A common theme is that Old Labour focused much of its concern on redistribution, and countering inequalities of income. It was also concerned with empowerment. Among leading labour law gurus like Kahn-Freund an influential (and still valuable) perspective of the employment relationship was that of the employer as a 'bearer of power', and of the isolated worker who was not a 'bearer of power'. In its inception Kahn-Freund saw the relationship as 'an act of submission' by the worker. In its operation the relationship generally continued as one of 'subordination' – even if this might be concealed by what he referred to as 'that figment of the legal mind' the contract of employment. On the basis of this analysis, concluded Kahn-Freund, the main mission for labour law is to be a 'countervailing force' to counteract such inequality of bargaining power, which is generally inherent in the relationship. As part of New Labour's ideological transformation it has been argued that such concerns, and preoccupations with redistribution of income and power, have given way to an emphasis on promoting equality of opportunity and capabilities: and social rights have become part of a bigger mission, which is to assist workers to participate in the benefits of a stronger labour market, and a more prosperous and competitive economy. It is also the case that a large element in employment law reform since 1997 has been to remove 'barriers to work' and legislate to 'make work pay', as part of the social inclusion agenda. The implementation of that approach began early on with the National Minimum Wage Act 1998, and the Tax Credits Act 1999 (now replaced with the much more comprehensive Tax Credits Act 2002). The 2002 Act undoubtedly provides for such a substantial income transfer from the State to workers that there must be considerable doubt about the adequacy of any analysis that ignores such redistributions. For reasons which are considered in later chapters, including Chapter 22, the increasing levels of financial and other support by the State provide yet another reason why traditional labour law discourses, including those referred to in Hugh Collins' analysis in the 'Productive Disintegration of Labour Law' need to be revised. It is also clear that the bilateral contract-based model, characterised as a predominantly 'private' arrangement between employer and worker needs rapid updating, particularly given the reality that a large section of the labour market now gets a substantial quasi-wage from the State as well as from the employer (in many lowpay cases considerably more than the employer's wage); and that one of the legacies of deregulation of the labour, housing, and other markets, and employers' recognition of the scale of financial support, has been to make such workers heavily reliant on the State. For reasons which are essentially economic, and a mix of competitiveness, macro-economic efficiency, and welfare agendas, the employment relationship has been developing into a tripartite one. In the process, the State has become a significant stakeholder, and there is a growing potential for it to assert its stake when, as it has been doing, it regulates all stages of the employment life-cycle.

A key facet of New Labour thinking in all this has been a pre-occupation with 'personal responsibility', and getting a job to facilitate 'independence'. This focused, initially, on perceptions of individuals' responsibilities to seek employment, and retain it (as part of the government's approach to welfare-to-work, and its New Deal programmes) – but it has progressively extended into other areas of policy and employment. For example, what began as a mild exhortation to employees, and their unions, to help make the 'workplace partnership' ideal work when an early blueprint for reform Fairness at Work was published in 1998 has since found expression in legal requirements to realise this objective – including penalties for not making use of, or following, prescribed dispute procedures before pursuing tribunal litigation options. Another source of employment law that is replete with the language of social partnership, and imbued with its own distinctive set of ideologies about workplace relations, is European Community Law. To the extent that employment law and social policy now takes much of its formal lead from policies of the EC, we need look no further for this than the Treaty Establishing the European Community itself. The original Treaty of Rome was consolidated by the Treaty of Amsterdam and extended by the Treaty of Nice; and it now includes Title VII (arts. 125–130) on Employment. It is supplemented by Guidelines drawn up each year by the European Council under art. 128 (2) which Member States are required to take on board in developing and implementing employment policies. Art. 125 sets an important benchmark for developing new employment regimes, stipulating among other things that Member States and the Community must not only develop a co-ordinated strategy for employment, but one that promotes 'a skilled, trained and adaptable workforce and labour markets responsive to economic change ...' Much of the impetus, and support, for concepts like 'adaptable working' and 'labour market responsiveness' which went into Title VII, and language like the 'dialogue between management and labour', and the 'social partners working together' in Title XI on Social Policy, had their origins in negotiations in the months preceding the signing of the Amsterdam Treaty. The influence of the UK's Prime Minister on the proceedings can also be seen in his address to the EC Council in June 1997 (reported in Hansard, 18 June 1997). Among other things he referred to Europe needing a 'new approach to employment and growth, based on British ideas for competitiveness, introducing more flexible labour markets and employability'. The form of words finally adopted in key parts of the Treaty are also significant in other respects. In art. 127 (2), for example, it asserts that 'The objective of a high level of employment shall be taken into consideration in the formulation and implementation of Community policies and activities' (emphases added). This, in fact, represented a significant phase in EC employment law history, and in particular a triumph over those Members States' leaders, and countries like Sweden, and the European Trade Union Confederation, who had pressed hard for a wider-ranging mission, and setting an objective of full employment. Despite the best efforts of the left and centre-left to do this, and to set some significant new directions for employment and social policy in Europe, including clearer commitments to enshrining 'job security' as part of the formal EC agenda, such opportunities were not taken. The changes eventually agreed have been described as representing little more than a 'weak left turn'.

Nevertheless, a by-product of Amsterdam has been a significantly wider scope for employment legislation in most areas of employment. In developing a Community 'social dimension' there has also been a continuing fusion of employment and other elements of social policy. This can be seen from the lead provisions and 'objectives' in art. 136 of Title XI. This took as its starting point the fundamental social rights of the European Social Charter 1961, and the Community Charter of the Fundamental Social Rights of Workers 1989. But it then identifies, in art. 136 'objectives' such as improving the promotion of employment, improved living and working conditions, 'proper social protection of workers', and the combating of social exclusion. Art. 137 develops the agenda further, enabling the Community to support and complement Member States' activities in areas like improvement of the working environment to improve health and safety, working conditions, social security and social protection, and the protection of workers where their employment contract is terminated. As art. 140 makes clear, in developing the social rights referred to in art. 136 the EC's remit has become one of co-ordinating Member States' action in all social policy fields – but particularly those relating to employment, labour law and working conditions, training, social security, prevention of occupational accidents and diseases, and rights of association and collective bargaining.

This has, without doubt, signalled important changes in the UK to the parameters of 'employment rights' as a subject. Whereas the EC and other Member States have, for some time, regarded employment issues as intertwined with social policy in its broader context, UK employment law has had a significantly narrower ambit. Primarily the focus has been, in the UK, on the employment contract, and protective legislation that is superimposed on the contract. For reasons advanced in Chapter 4, the move away from a traditional focus on the contract of employment, and towards an 'employment relationship' has also been accompanied by recognition of other important influences. Not least of these is a discourse that recognises the importance of public law procedures and rights – for example in relation to public sector employment rights. The swathe of anti-union legislation in the 1980s and 1990s, followed by the re-introduction of statutory recognition procedures in the Employment Relations Act 1999, has maintained collective labour relations law as a subject. Wider aspects affecting the employment relationship are no longer segregated off from the subject of 'employment rights'. EC developments, in these respects, have undoubtedly broadened perceptions of the subject in the UK. It is now as much concerned with employment-related issues like welfare-to-work schemes, job creation, reconciling work and family commitments, gender gaps, and States' taxation and benefits systems, as with more traditional areas of employment rights. There is every reason to believe that the UK's action programme will be developed even further to integrate more closely with social policy aspects of employment, for example in legislation to accord greater rights to atypical groups like disabled people, older workers, part-timers, and those on fixed-term contracts. This is particularly seen with the measures to attract and retain such groups in the labour market with tax credits and other incentives.

The point was made in the first edition of this book that underlying the rhetoric and the laws is the reality that economic forces are busily re-shaping the employment landscape and the policy agenda. Falling profitability and demands by employers for more 'competitiveness' were just some of the catalysts for changes in the redundancy laws and collective labour rights, and for dismantling systems for securing rights at work at that time. This was evident when deregulatory agendas, privatisation, and competitive tendering in the public sector quickly led to new employment laws and priorities, and the abandonment of laws that no longer suited employers' requirements. Similarly, the removal of other wage-fixing mechanisms, notably the wages councils (performing an important role in areas of the labour market without developed collective bargaining) suffered the same fate as a direct consequence of such pressures.

The internationalisation of capital and businesses, the transnational nature of production of goods, and the removal of production processes out of so-called 'highwage' economies into countries with lower labour costs (including Eastern European countries, India and the Far East), raise important issues about the rights of workers in those countries as well as those in employment in the UK and in the rest of the EC labour market. The inability of individual Member States to respond to the scale of the changes brought about by the global movement of capital, and changes in production technology, or to devise employment and welfare programmes which can sustain acceptable levels of employment, has also underlined for EC politicians and planners the necessity for EC-wide programmes. The increasing cost to Member States of income support systems as part of the development of the Social Dimension and in the form of in-work and out-of-work benefits, and employment-related support measures (like tax credits under the Tax Credits Act 2002), has precipitated doubts among some commentators about some of the negative implications of adapting State welfare to reduce employers' labour costs, and making workers increasingly reliant on such income.

The EC's drive towards the creation of the 'flexible labour market', including the promotion of mechanisms to promote 'employability' and 'adaptability' – now imbedded in the Treaty – are the hallmarks of the new thinking. The origins of such ideas, and the impetus for developing them further and in new directions, is now seen as what EC leaders and the EC Commission routinely describe as the 'global challenge'.

Whether the results of these ideas are always likely to be welcomed by European citizens is another matter. Some of the by-products of the flexible labour market, such as 'zero hours' contracts and annualised hours and pay arrangements have been less than welcome: as is the pressure on unions to negotiate new and what can often be less advantageous arrangements in return for 'security of employment' undertakings from employers. These are themes discussed in more detail in later chapters – for example in cases like Ali v. Christian Salvesen (Chapter 7) which illustrate the pressures unions are increasingly under to trade job security for reductions in pay, hours, and other conditions. A more recent statement of EC and UK policy, in Full and Fulfilling Employment: Creating the Labour Market of the Future (DTI, 2003), indicates how 'adaptability' expectations on both workers and their employers are being ratcheted up, spelling out that 'A Europe endeavouring to raise its productivity must also concentrate on the flexibility of its labour force. This flexibility encompasses geographical and occupational mobility and skills, as well as the ability of wages and working conditions to adjust to different economic circumstances ...' As one commentator pointed out during earlier phases in these developments, the real thrust of such 'flexibility' is often to shift the risks of business fluctuations from the employer onto the worker.

In the rest of this chapter we chart some of the specific developments and trends that have contributed to the current employment rights regime.

(Continues…)

---

Excerpted from "Employment Rights"
by .
Copyright © 2004 Richard W. Painter and Keith Puttick.
Excerpted by permission of Pluto Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---

Table of Contents

Table of Cases
Introduction
1. Individual Rights
2. Discrimination
3. Job Loss
4. Health and Safety
5. Collective Rights
6. Legal Action
Notes
Index

Editorial Reviews

'This book sets out to provide a guide to rights at work. It does so in lucid style, whilst, at the same time, seeking to place the law in its political and historical context ... a useful one for the trade unionist.' --Labour Research

'Most useful for law students, trade unionists and non-specialists, and a good start for any lawyer changing specialisms or wanting a clear picture of the current state of play and how we got there.' --Law Society Gazette

From the Publisher