Labour Law (Law in Context)

Labour Law (Law in Context)

By Hugh Collins, K. D. Ewing, Aileen McColgan

The second edition of Labour Law (Law in Context) examines the law relating to employment industrial relations, and labour market regulation in the United Kingdom, including relevant dimensions of EC law and policy.

This textbook aims to provide a comprehensive study guide for students in labour law or employment law courses. It is divided into twenty chapters, corresponding approximately to a full-year university course. It includes both a comprehensive discussion of collective labour law issues as well as individual employment law disputes. For shorter or more focused courses, teachers may
prefer to concentrate on some of the chapters or parts of the book and will find that each chapter is largely self-contained. As well as providing a description and analysis of the law, in the spirit of the Law in Context series, the textbook offers criticisms of the law drawn from different perspectives and disciplines. Most chapters also include brief vignettes, often based on examples drawn from the news, which should provide a stimulus to classroom discussion. Although the authors have written an earlier book on labour law together, this text is completely restructured and almost entirely new. Responsibility for the different chapters has been divided unevenly: Collins: Chapters 1, 3–7, 10, 11 and 18–20; Ewing: Chapters 2, 8 and 12–17; and McColgan: Chapter 9. We are grateful to the editors of this series and the publishers at Cambridge University Press, especially Sinead Moloney, for their encouragement for writing the book and their patience in awaiting its delivery.

 Reviews

‘Collins, Ewing, and McColgan’s Labour Law provides one of the finest examples of a research-led teaching manual. Its users will no doubt emerge with an authoritative, rich, and critical understanding of English labour law, and fully appreciate the development of this multifaceted legal discipline in the broader European and international context. ‘Labour law’ at its best.’ Dr Nicola Countouris, University College London

‘Comprehensive and well-written; this text makes all aspects of employment law accessible. Both students and teachers should find it informative and useful for employment law courses.’ Dr Jessica Guth, Bradford University Law School

Product Details

  • ISBN-13: 9781107027824
  • Publisher: Cambridge University Press
  • Publication date: 9/27/2012
  • Series: Law in Context
  • Pages: 980

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Contents

Preface page xix
Acknowledgments xx
Table of cases xxi
Table of statutes xxxix
Table of statutory instruments xlvi
Table of European Union instruments l
Table of ILO instruments liii
Table of other international instruments lv
List of abbreviations lvi
Part I Introduction 1
1 Nature and sources of labour law 3
What is labour law? 4
Significance of labour law 5
The employment relation 6
United Kingdom labour law 9
European Union employment law 11
Competence 11
Effects 14
Compliance 16
Regulatory standards with criminal sanctions 17
Individual civil claims 17
Collective bargaining 18
Effectiveness of labour law 21
Sources of workplace conflict 22
Labour courts and dispute resolution 25
Conciliation 26
Arbitration 27
Employment tribunals

Other forms of alternative dispute resolution 32
The ordinary courts 33
Prospects for labour law 35
Flexibility and security 35
Vulnerable workers 38
Social exclusion 39
Regulatory strategies 39
Voice at work 41
Work/life balance 42
Human rights 42
Globalisation 43
2 Globalisation and labour law 45
Introduction 46
International standards 47
ILO conventions 48
ILO supervision 50
Global trade 52
The social clause 52
Legacy of the social clause 53
Trade incentives to improve labour standards 55
Working abroad 57
Rome I Regulation and contract 57
Rome I Regulation and statute 58
Posted workers: minimum standards 60
Core standards 61
Raising the standard? 62
Globalisation and ‘precarious’ employment 63
Morecambe Bay 64
Gangmasters (Licensing) Act 2004 65
Forced labour and human rights 67
Convention rights 68
British law 69
Global corporations 72
Codes of conduct 72
Global framework agreements 74
OECD Guidelines for Multinational Enterprises 76
OECD Guidelines in outline 76
OECD procedures in operation 78
Global unions 80
Global union organisation 81
Global union action 82
Global labour law 84
Right to bargain collectively

Right to Collective Action 86
Conclusion 87
Part II The contract of employment 91
3 Terms of the contract of employment 93
The contract of service 93
Freedom of contract 94
The standard model of employment 95
Criticisms of the contractual model 98
Indeterminacy and plurality of sources of rules governing
employment 103
Express terms 105
Disclosure of terms of employment 109
The small print 116
Organisational rules 119
Collective agreements 123
Legal enforceability 123
Incorporation 124
Enforcement by employees 125
Enforcement by employers 128
Conclusion 130
4 Authority and co-operation 131
The legal construction of hierarchy 131
Mutual trust and confidence 136
Good faith 139
Arbitrariness in remuneration 140
A foundation of the contract? 141
Performance in good faith 143
Loyalty and confidentiality 145
Duty of loyalty 146
Confidential information 148
Lawfulness 150
Health and safety risks 150
Tax evasion 151
Restraint of trade 153
5 Flexibility and precarious work 158
Unilateral variation of terms 162
Enforcement of the contract 162
Claim for unfair dismissal 163
Variation by collective agreement

Changing the job 169
Flexibility and variation clauses 171
Temporary and casual employment 177
Umbrella contracts 179
Continuity of employment 181
Transmutation of fixed-term contracts 183
6 The personal scope of labour law 185
The challenge of personal scope 185
Contracts of service and contracts for services 189
Sham contracts 194
Dependent entrepreneurs 197
The variable scope of regulation 200
Employees 200
Employment relationship 201
Worker 202
EU worker 205
Personal work contracts 206
Towards a unified personal scope? 210
Triangular relations 212
Associated employers 212
Service companies 214
Agency workers 215
Networks 222
Vulnerable workers 223
Part III Statutory regulation of the employment
relationship 227
7 Wages 229
The wage/work bargain 229
Deductions for incomplete and unsatisfactory work 233
Withholding pay at common law 233
Statutory protection against deductions 237
Duty to provide work 243
Shortage of work 243
The principle of mutuality or reciprocity 247
National minimum wage 248
Scope of application 251
Setting the minimum wage 252
Calculating wages 253
Enforcement of the National Minimum Wage 260
Impact of the National Minimum Wage

8 Working time 266
Introduction 267
International standards 269
From conflict . . . 270
. . . to co-operation 271
The Working Time Directive 273
Challenging the legality of the Directive 274
Extending the reach of the Directive 276
Questions of scope 277
‘Worker’ 278
‘Working time’ 279
Limits and entitlements 281
Limits 281
Entitlements 284
Annual leave 286
Nature of the right to annual leave 286
Exercising the right to annual leave 287
Payment during periods of leave 289
What is pay? 289
Timing of payment 291
The question of deferred pay 292
‘Carrying over’ holiday pay 293
The problem of unused leave 294
Exclusions 295
Unmeasured working time 297
‘Other special cases’ 298
Negotiated flexibility and the role of collective agreements 300
The Directive and collective agreements 301
The Regulations and collective agreements 302
Enforcement and remedies 304
Individual remedies 305
Individual remedies and regulation 4 307
Conclusion 309
9 Equality 311
Introduction 312
‘Protected characteristics’ 314
Disability 315
Race 319
Religion/belief 320
‘Discrimination’: an introduction 321
Direct discrimination 322
Discrimination on the basis of association or perception

Intention, motivation and discrimination 325
The comparator problem 326
‘Less favourable treatment’: appearance rules 328
Indirect discrimination 331
Justification 334
‘Multiple discrimination’ 337
Positive action 338
Harassment 341
Victimisation 343
Disability 346
Duty of reasonable accommodation 346
Discrimination arising from disability 349
Prohibited discrimination 350
‘General occupational requirement’ and other exceptions to the
prohibitions on discrimination 352
Equal pay 360
Establishing a claim 365
Burden of proof 366
Remedies 367
10 Work/life balance 370
Protection against disadvantage arising from pregnancy or
maternity leave 371
Dismissal 372
Detriment 373
Discrimination 374
Right to paid maternity leave 375
Statutory maternity leave 376
Rights during maternity leave 377
Maternity pay 378
Return from maternity leave 381
Statutory adoption leave 382
Paid paternity or partner leave 383
Parental leave 385
Emergency leave 390
Right to request ‘flexible working’ 393
Discrimination against part-time workers 398
A vision of the work/life balance 405
11 Civil liberties at work 408
Interpreting the Human Rights Act 409
Indirect effect of the Human Rights Act 409
The influence of th

Privacy 415
Surveillance 416
Confidential records 420
Testing for drugs and alcohol 424
Lifestyle 425
Freedom of religion 429
Freedom of expression 433
Social networks 434
Political activities 435
Whistleblowing 438
Dress codes 443
Part IV Collective labour rights 445
12 Freedom of association and the right
to organise 447
Introduction 448
Refusal of employment 449
TULRCA 1992, section 137 449
TULRCA 1992, section 152 451
Blacklisting 453
Consulting Association 454
Blacklists Regulations 2010 457
Discrimination 459
The Wilson and Palmer case 460
The Strasbourg application 461
The legislative response to Wilson and Palmer 463
Trade union services and representation 464
Discriminatory inducements 466
Victimisation of workers’ representatives 469
Nature of the activity 470
Timing of the activity 472
Victimisation and the problem of remedies 474
The Lynch and Thomas cases 474
Lessons of the Lynch and Thomas cases 476
Trade union security and the right not to join 478
The closed shop and organisational security 479
International law and the closed shop 481
Organisational security and legal restriction 483
Statutory framework 483
‘100% campaigns’ and ‘fair shares’ agreements 485
Conclusion

13 Freedom of association and trade union autonomy 490
Introduction 490
Trade union: definition, listing and status 492
Trade union objects 495
Objects clauses 496
Political objects 498
Trade union government 501
Constitutional constraints 502
Constitutional conflicts 504
Trade union elections 506
Statutory procedures 507
Role of the courts 509
Trade union members’ rights 511
Right to information 512
Right not to strike 514
Trade union exclusion and expulsion 518
Cheall and its progeny 518
ASLEF and its progeny 521
Trade union disciplinary procedures and decisions 523
Disciplinary procedures 524
Disciplinary decisions 530
Trade union supervision 531
Conclusion 535
14 The right to bargain collectively 537
Introduction 538
Collective bargaining and international standards 539
The International Labour Organization 539
The Council of Europe 542
Collective bargaining methods 544
‘Regulatory’ and ‘representative’ bargaining models 545
Bargaining decentralisation 547
Voluntary recognition arrangements 550
Form and content of recognition arrangements 551
Derecognition: strategies for resistance 555
The statutory board game 558
Applications and admissibility 559
The bargaining unit 562
Establishing majority support 565
Forcing a ballot 565
Conduct of the ballot 567
The problem of employer resistance 570
News International 571
Cable & Wireless plc

Rights of recognised trade unions: facilities for collective bargaining 577
The legal framework 577
Trade union facilities under threat 581
Rights of recognised trade unions: information for
collective bargaining 584
The statutory obligation 584
The law in practice 587
Conclusion 590
15 The right to be informed and consulted 593
Introduction 594
Consultation rights and European law 595
From specific duties . . . 596
Resisting employer avoidance 598
. . . to general obligations 600
Limited impact 602
European Works Councils 604
The ‘Recast Directive’ 607
Redundancy consultation 609
The meaning of collective redundancy 609
‘Proposing’ to dismiss 612
Employee representatives 614
Process of consultation 616
Special circumstances 619
Enforcement of duty to consult 621
Information and consultation procedures 624
Questions of scope 625
Pre-existing agreements 627
Negotiated agreements 630
Enforcing the employer’s obligation 632
Protection of employee representatives 634
Implementing the Directive 636
European Works Councils 638
Questions of scope 639
Special Negotiating Body 642
Negotiating an agreement 644
Subsidiary requirements 647
Rights and duties of workers’ representatives 649
Enforcement 651
Conclusion 653
16 Collective action and the right to strike 656
Introduction 657
Right to strike and international standards

The International Labour Organization 659
Council of Europe 661
Common law liability and statutory immunity 663
Common law liability 664
Statutory immunity 667
Narrow scope of protected action 669
‘Trade’ disputes, not ‘political’ disputes 670
Narrow scope of ‘trade’ disputes 672
Before the ballot 674
Notice of intention to ballot 675
Duty to provide explanation to employer 677
The ballot 679
The statutory duty 679
Conduct of the ballot 681
After the ballot 684
Notice of ballot result 685
Notice of industrial action 687
Prohibitions and restrictions 690
Picketing 691
Secondary action 693
The Human Rights Act 1998 696
Stalling in the Court of Appeal 697
Into first gear on Convention rights 699
Conclusion 703
17 Liability for collective action 706
Introduction 707
Industrial disputes and the state 708
Conciliation 709
Arbitration and other powers 710
Labour injunctions 713
Interim injunctions 713
Evolution of the law 716
Labour injunctions in practice 718
The employer’s interest 718
The public interest 720
Trade union liability 724
Injunctions against trade unions 724
Enforcing the injunction 726
Discipline and dismissal 731
Action short of dismissal 732
Dismissal and replacement 734
Protected industrial action 737
Statutory protection

Limits of statutory protection 740
Unprotected and unofficial industrial action 742
Unprotected action 743
Unofficial action 745
The ‘public interest’ 747
Prohibited industrial action 748
Industrial action in essential services 751
Conclusion 754
Part V Termination of employment 759
18 Wrongful dismissal 761
The right to protection against unjustified dismissal 761
Common law and statute 765
Breach of the duty to give notice 770
Implied term of reasonable notice 770
Statutory minimum notice period 771
Wrongful dismissal without notice 773
Justified summary dismissal 777
Implied term of mutual trust and confidence 779
Johnson exclusion zone 780
Economic loss 782
Psychiatric illness 784
Disciplinary procedure 786
Right to representation 787
Contractual disciplinary procedure 789
Disciplinary rules 793
Injunctions 796
19 Unfair dismissal 800
Qualifying conditions 801
Contract of employment 801
Qualifying period of continuous service 802
Three-month limitation period 805
Effective date of termination 805
Statutory concept of dismissal 807
Dismissal or resignation? 808
Constructive dismissal 810
Frustration 812
Agreed termination and compromise agreements 815
The test of fairness 818
Principal reason for dismissal 819
Substantial reason

Automatically unfair dismissal 820
The range of reasonable responses test 823
Procedural fairness 833
Remedies for unfair dismissal 838
Compliance and corrective justice 838
Reinstatement 840
Compensation 844
Upper limit on compensation 855
20 Economic dismissal 857
Competing policies 858
Capital markets 858
Employment security 859
Social costs 859
Regulatory impact 860
Dismissal for redundancy 862
Redundancy and unfair dismissal 863
Statutory concept of redundancy 864
Reorganisation involving new job specifications 869
Flexibility clauses 873
Place of work and mobility clauses 874
Claims for unfair dismissal 875
Some other substantial reason for dismissal 875
Fairness of selection for redundancy 877
Redeployment 880
Offer of alternative employment 881
Failure to consider redeployment 882
A positive duty? 883
Insolvency 884
Protection of wages 885
Corporate rescue 888
Transfers of undertakings 890
Acquired Rights Directive 891
Dismissals before the sale or transfer 892
Dismissals after the transfer 896
Variation of terms by transferee 897
Outsourcing 899
Controlling capital

 

 

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