United Kingdom labour law 1 страница

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In the UK, the total working population is 32 million people, there is 7.7% unemployment, and 73.4% without union membership. The median income is £25,498, and the average working week is 41.4 hours.

United Kingdom labour law involves the legal relationship between workers, employers and trade unions. People at work in the UK benefit from a minimum charter of employment rights.[1] This includes the right to a minimum wage of £6.08 under the National Minimum Wage Act 1998, 28 paid holidays, and no longer working hours than one consents to under the Working Time Regulations 1998, the right to leave for child care, and the right to request flexible working patterns under the Employment Rights Act 1996. The Equality Act 2010 ensures people are judged by the content of their character, and not regulated characteristics such as race, gender, sexuality, beliefs, disabilities or age. The Employment Rights Act 1996 adds that, unless the employee repudiates the relationship, before a dismissal every employer must give reasonable notice after one month of work, backed by a sufficiently fair reason after one year of work, and with a redundancy payment after two years. If a company is taken over the Transfer of Undertakings (Protection of Employment) Regulations 2006 state that employees' terms cannot be worsened, including to the point of dismissal, without a good economic, technical or organisational reason.

Beyond individual rights, workers have the ability to participate in decisions about how their enterprise is managed through a growing set of statutory rights and the traditional models of collective bargaining. Gradually, the number of "John Lewis" style participatory institutions at work have grown, often mirroring European standards. Workers have the right to codetermine how their occupational pensions are managed under the Pensions Act 2004, and how health and safety policies in the workplace are formulated under the Health and Safety at Work Act 1974. In larger firms with over 50 staff, workers must be informed and consulted about major economic developments, particularly about business difficulties. This is happens through a steadily increasing number of works councils, which usually must be requested by staff. The UK has not yet implemented earlier proposals, or followed the majority practice in the EU to require that employees have a vote for members' of their company's board of directors. Collective bargaining between trade unions and company management remains the UK's primary participatory model. Collective agreements are backed up by the threat of a strike which is lawful if "in contemplation or furtherance of a trade dispute". Since the early 1980s, industrial action has steadily decreased, as has membership of trade unions. The Trade Union and Labour Relations (Consolidation) Act 1992 sets out rules for the constitution of trade unions, members' rights, the conditions to be fulfilled before strike action may be taken and the legal status of collective agreements.Contents [hide]

1 History

2 Employment rights and duties

2.1 Scope of protection

2.2 Contract of employment

2.3 Health and safety

2.4 Wages and working time

2.5 Child care and time off

2.6 Occupational pensions

2.7 Income tax and insurance

2.8 Civil liberties at work

3 Workplace participation

3.1 Trade unions

3.2 Participation

3.3 Information and consultation

3.4 Collective bargaining

3.5 Industrial action

4 Equality

4.1 Discrimination

4.2 Justification

4.3 Disability and positive action

4.4 Atypical work

4.5 Free movement and immigration

5 Job security

5.1 Wrongful dismissal

5.2 Unfair dismissal

5.3 Redundancy

5.4 Business transfers and insolvency

5.5 Unemployment

6 Enforcement and tribunals

7 International labour law

8 See also

9 Notes

10 References

11 External links

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History

Main article: History of labour law in the United Kingdom

Wat Tyler, leader of the Peasants' Revolt is killed in front of King Richard II.

"It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can combine much more easily; and the law, besides, authorizes, or at least does not prohibit their combinations, while it prohibits those of the workmen. We have no acts of parliament against combining to lower the price of work; but many against combining to raise it. In all such disputes the masters can hold out much longer. A landlord, a farmer, a master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year without employment. In the long run the workman may be as necessary to his master as his master is to him; but the necessity is not so immediate."

A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book I, ch 8

Labour law in its modern form is primarily a creation of the last three decades of the 20th century. However, as a system of regulating the employment relationship, labour law has existed since people worked. In feudal England, the first significant labour laws followed the Black Death. Given the shortage of workers and consequent price rises the Ordinance of Labourers 1349 and the Statute of Labourers 1351 attempted to suppress sources of wage inflation by banning workers organisation, creating offences for any able-bodied person that did not work, and fixing wages at pre-plague levels. Ultimately this led to the Peasants' Revolt of 1381, which was in turn suppressed and followed up with the Statute of Cambridge 1388, which banned workers from moving around the country. Yet conditions were improving as serfdom was breaking down. One sign was the beginning of the more enlightened Truck Acts, dating from 1464, that required that workers be paid in cash and not kind. In 1772 slavery was declared to be illegal in R v Knowles, ex parte Somersett,[2] and the subsequent Slave Trade Act 1807 and Slavery Abolition Act 1833 enforced prohibition throughout the British Empire.[3] The turn into the nineteenth century coincided with the start of the massive boom in production. Gradually people's relationship to their employers moved from one of status - formal subordination and deference - to contract whereby people were formally free to choose their work.[4] However, freedom of contract did not, as the economist Adam Smith observed, change a worker's factual dependency on employers.

Men leaving the pit, before the start of the Great War. The average life expectancy of a Liverpool mineworker was 30 years in 1900.

As its height, the businesses and corporations of Britain's industrial revolution organised half the world's production across a third of the globe's surface and a quarter of its population. Joint Stock Companies, building railways, canals and factories, manufacturing household goods, connecting telegraphs, distributing coal, formed the backbone of the laissez faire model of commerce. Industrialisation also meant greater urbanisation, and inevitably miserable conditions in the factories. The Factory Acts dating from 1803 required minimum standards on hours and conditions of working children. But people were also attempting to organise more formally. Initially, trade unions were suppressed, particularly following the French Revolution of 1787 under the Combination Act 1799. The Master and Servant Act 1823 and subsequent updates stipulated that all workmen were subject to criminal penalties for disobedience, and calling for strikes was punished as an "aggravated" breach of contract. But then the position was slowly liberalised and through the Trade Union Act 1871 and the Conspiracy, and Protection of Property Act 1875 trade unions were legitimised.[5] Toward the turn of the century, in Mogul Steamship Co Ltd v McGregor, Gow & Co,[6] the House of Lords emphasised that businesses should be free to organise into trade associations in the same way that employees organised into unions. However, with growing unrest and industrial action the House of Lords changed its mind. At the turn of the century he notorious judgment of Taff Vale Railway Co v Amalgamated Society of Railway Servants,[7] made unions liable in economic tort for the costs of industrial action. Although a combination of employers in a company could dismiss employees without notice, a combination of employees in a trade union were punished for withdrawing their labour. The case led trade unions to form a Labour Representation Committee, which then became the UK Labour Party, to lobby for the reversal of the law. After the United Kingdom general election, 1906 a coalition government composed of the new Labour Party and the Liberals, among whom David Lloyd George and Winston Churchill were rising stars, quickly passed the Trade Disputes Act 1906. This laid down the essential principle of collective labour law that any strike "in contemplation or furtherance of a trade dispute" is immune from civil law sanctions. Accompanying this, the government embarked on widespread social reform. The Old Age Pensions Act 1908 provided pensions for retirees. The Trade Boards Act 1909 created industrial panels to fix minimum wages. And the National Insurance Act 1911 levied a fee to insure people got benefits in the event of unemployment.

The Versailles Treaty that established the International Labour Organisation in 1919.

During World War One the brutality of the Western Front demanded the participation of every available person and resource. As women took over traditional "men's jobs" the Suffragette movement gained momentum. Before the war's conclusion, the Representation of the People Act 1918 gave universal suffrage to men over age 21 and women over 28. A new beginning was promised by the victors to their people. The Versailles Treaty created the International Labour Organisation to draw up common standards between countries, for as it said, "peace can be established only if it is based on social justice", and echoed the US Clayton Act 1914 in pronouncing that "labour should not be regarded merely as a commodity or an article of commerce".[8] But the international system remained disjointed as the United States Congress withheld its approval to join the League of Nations. Within the UK the postwar settlement was to make a home fit for heroes. Whitley Councils extended the Trade Boards Act 1909 system to Joint Industrial Councils that encouraged (non legally binding) fair wage agreements,[9] while the Ministry of Labour actively organised and advised the growth of trade unions.[10] This was based on a theory of collective bargaining, agreement or action, advocated by Sidney Webb and Beatrice Webb in Industrial Democracy to remedy the inequality of bargaining power of workers.[11] Without legal force behind collective agreements, the law remained in a state of collective laissez faire, encouraging voluntarism for agreement and dispute settlement between industrial partners. The 1920s and 1930s were economically volatile. In 1926 a General Strike against coal miners' pay cuts paralysed the country, though was broken by Winston Churchill, by then the Chancellor of the Exchequer. The Labour Party had formed Parliamentary majorities in 1924 and 1929, but achieved little in the way of reform, particularly after the onset of the Great Depression.

By the Second World War and the Labour government of Clement Attlee, trade union membership was well established and collective agreements covered over 80 per cent of the workforce. With the British Empire in rapid dissolution, immigration from Commonwealth countries, and record levels of female workplace participation the character of Britain's workforce was changing fast. Though the common law was sometimes comparatively progressive,[12] sometimes not,[13] the first statutes to prohibit discrimination focused on gender and race emerged in the 1960s as the Civil Rights Act was passed in the United States. Discrimination in employment (as in consumer or public service access) was formally prohibited on grounds of race in 1965,[14] gender in 1975, disability in 1995, sexual orientation and religion in 2003 and age in 2006.[15] A complicated and inconsistent jamboree of Acts and statutory instruments was placed into a comprehensive code in the Equality Act 2010. Much discrimination law is now applicable throughout the European Union, to which the UK acceded in 1972. Although labour laws in the early European Treaties and case law were scant,[16] the Social Chapter of the Maastricht Treaty brought employment rights squarely into the EU's jurisprudence. Meanwhile, starting from the Contracts of Employment Act 1963, workers gained a growing list of minimum statutory rights, such as the right to reasonable notice before a fair dismissal and a redundancy payment.[17] Labour governments through the 1960s and 1970s were troubled by reform of the unwieldy trade union system. Despite producing reports such as In Place of Strife and the Report of the committee of inquiry on industrial democracy[18] which would have made unions accountable to their members created more direct workplace participation, reform did not take place.

The UK miners' strike (1984–1985) was a bitter confrontation between the Thatcher government and coal mine workers.

From 1979, a new Conservative government took a strongly sceptical policy to all forms of labour law and regulation. During the 1980s ten major Acts gradually reduced the autonomy of trade unions and the legality of industrial action.[19] Reforms to the internal structure of unions mandated that representatives be elected and a ballot is taken before a strike, that no worker could strike in sympathetic secondary action with workers with a different employer, and that employers could not run a closed shop system of requiring all workers to join the recognised union. The wage councils were dismantled. A public campaign against the merits of unions paralleled the decline of membership and collective agreement coverage to under 40 per cent. In addition, the government opted out of the EU Social Chapter in the Maastricht Treaty. In 1997 the new Labour government brought the UK into the EU's Social Chapter, which has served as the source for most reform in UK law since that time. Domestic led reform was minimal. The National Minimum Wage Act 1998 established a country-wide minimum wage, but did not attempt to reinvigorate the Wage Board system. The Employment Relations Act 1999 introduced a 60 page procedure requiring employers to compulsorily recognise and bargain with a union holding support among workers, though union membership remained at a level steadily declining below 30 per cent.

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Employment rights and duties

All UK workers enjoy a minimal charter of employment rights,[20] but compared to the EU average have longer working hours, more unequal pay, less time off for child care, and are less likely to have an occupational pension.

See also: European labour law, German labour law, French labour law, Australian labour law, Canadian labour law, Indian labour law, and US labor law

UK labour law's primary concern, particularly under the Employment Rights Act 1996, is to ensure that every working person has a minimum charter of rights in their workplace.[21] Traditionally it draws a divide between self employed people, who are free to contract for any terms they wish, and employees, whose employers are responsible for complying with labour laws. UK courts and statutes, however, use a number of different terms for different rights, including "worker", "employee", "jobholder", "apprentice" or someone with an "employment relation". A "worker" is entitled to a minimum wage of £5.92 per hour, 28 statutory minimum days of holiday[22] and a formal right to opt out of working over 48 hours a week, enrolment in a pension plan, not to mention the right to equal treatment and anti-discrimination that also apply to consumers and public services.[23] An "employee" has all those rights, and also a safe system of work, the right to a written contract of employment, time off for pregnancy or child care, reasonable notice before a fair dismissal and a redundancy payment, and the duty to contribute to the National Insurance fund and pay income tax.[24] The scope of the terms "worker", "employee", and others, are more or less left to the courts to construe according to the context of its use in a statute.[25] English courts view an employment contract as involving a relation of mutual trust and confidence,[26] which allows them to develop and enlarge the remedies available for workers and employers alike when one side acts out of bad faith.

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Scope of protection[show]

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Workplace protection cases

See also: Worker, Employee, and Inequality of bargaining power

As yet, the UK has not consolidated a single statutory definition of the people to whom employment rights and duties apply. Statute and case law, both domestic and European, use 2 main definitions (employee and worker), and approximately 3 other minor types (jobholder, apprentice, and someone with an employment relation). The EU does have one consolidated definition of a ‘worker’, which is someone who has a contract for work in return for a wage, and also stands as the more vulnerable party to the contract.[27] This reflects the kernel of classical labour law theory, that an employment contract is one infused with “inequality of bargaining power”,[28] and stands as a justification for mandating additional terms to what might otherwise be agreed under a system of total freedom of contract.

Sidney and Beatrice Webb, in their book Industrial Democracy argued that because workers' inequality of bargaining power meant they could not contract for it themselves, law should create a "national minimum" of workplace rights, with collective labour law to secure a living wage.

In the UK an ‘employee’ has all available rights (all the rights of a ‘worker’ but also child care, retirement and job security rights). The meaning is explicitly left to the common law under the main statute, the Employment Rights Act 1996 section 230, and has developed according to the classical 19th century contrast between a contract ‘of service’ and one ‘for services’. The government may also pass secondary legislation to include specific groups of people into the ‘employee’ category.[29] While the classical test was that an employee was subject to a sufficient degree of ‘control’,[30] new forms of work where people were had greater autonomy outside the factory to choose how to do their jobs, meant that, particularly from the mid-20th century,[31] additional tests of employment were developed. Multiple factors, including how much one could said to be ‘integrated’ into the business,[32] or whether one metaphorically wore the ‘badge’ of the organisation, were looked at, with a focus, it was said on ‘economic reality’ and form over substance. Multiple relevant factors would include how much the employee was ‘controlled’, if they owned their tools, if they had the chance of profit and bore the risk of loss.[33] But in the late 1970s and 1980s, some courts began to speak of a new test of ‘mutuality of obligation’. One view of this was merely that workers exchanged work for a wage.[34] Another view stated that the employment relationship had to be one where there was an ongoing obligation to offer and accept work.[35] This led to cases where employers, typically of people on low wages and little legal understanding, pleaded that they had only hired a person on a casual basis and thus should not be entitled to the major job security rights. However the leading case, Autoclenz Ltd v Belcher decided by a unanimous Supreme Court in 2011, brought the definition of an employment contract in line with that in used in the EU. Confirming that employment contracts are one of a specific type, and separate from commercial agreements,[36] Lord Clarke held that an exchange of work for a wage was essential, that what the private "true" intentions of the parties wanted was not as important as the reality, and that bargains took place in the context of an unequal bargaining relation. As he put it,

... the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.

This meant that a group of car valeters, although described in their contracts as being self employed, with a right to substitute another person to do their work, and professed to have no obligation to undertake work, were entitled to a minimum wage and paid leave. The contract terms could be disregarded because they did not represent the reality of the situation.[37] In addition, a ‘worker’ is defined in ERA 1996 section 230 as someone with a contract of employment or who personally performs work and is not a client or a customer. This concept has greater scope, and protects more people, than does the term ‘employee’. This class of person is entitled to a safe system of work, a minimum wage and limits on working time, as well as discrimination and trade union rights, but not job security, child care and retirement rights. This concept thus reaches up to protect people who are quasi-self employed professionals, albeit not so vulnerable, such as a home cleaner, or music teacher who visits student homes, or a taxi cab driver wearing a firm’s logo.

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Contract of employment[show]

v · d · e

Employment contract cases

See also: Employment contract in English law, English contract law, and Employment contract

Once a person's work contract is categorised, the courts have specific rules for determining, beyond the statutory minimum charter of rights, what are its terms and conditions. Analogous rules for incorporation of terms, and implication terms exist as in the ordinary law of contract, however in Gisda Cyf v Barratt, Lord Kerr emphasised that this process of construction is one that must be “intellectually segregated” from the general law of contract, because of the relation of dependency an employee has.[38] In this case, Ms Barratt was told her employment was terminated in a letter that she opened 3 days after its arrival. When, 3 months and 2 days after arrival, she lodged an unfair dismissal claim, the employer argued it was time barred on the ground that in ordinary contract law one is bound by a notice when a reasonable person would have read a message. The Supreme Court held that Ms Barratt was in time for a claim because she was only bound by the notice when she actually read it. The applicable in employment was different, given the purpose of employment law to protect the employee. From formation to termination, employment contracts are to be construed in the context of statutory protection of dependent workers.

Every employee is entitled to a written statement of their employment contract,[39] which will usually incorporate the workplace collective agreement, and must follow, or be better than the minimum statutory rights.

The terms of employment are all those things promised to an employee when work begins, so long as they do not contravene statutory minimum rights. In addition, terms can be incorporated by reasonable notice, for instance by referring to a staff handbook in a written employment agreement,[40] or even in a document in a filing cabinet next to the staff handbook.[41] While without express wording they are presumed not binding between the union and employer,[42] a collective agreement may give rise to individual rights. The test applied by the courts is to ask loosely whether its terms are ‘apt’ for incorporation, and not statements of ‘policy’ or ‘aspiration’. Where the collective agreement’s words are clear, a "last in first out" rule was held to potentially qualify, but another clause purporting to censure compulsory redundancies was held to sound like it was binding ‘in honour’ only.[43]

In addition to statutory rights, expressly agreed terms and incorporated terms, the contractual hallmark of the employment relation is the series of standardised implied terms (or terms implied in law) that accompany it. In addition to individualised implied terms that the courts construe to reflect the reasonable expectations of the parties,[44] the courts have long held that employees are owed additional obligations, such as a safe system of work[45] and payment of wages even when the employer has no work to offer.[46] Reflecting more recent priorities, employers have also been recognised to have a duty to inform their employees of their workplace pension rights,[47] although they have stopped short of requiring employers to give advice on qualifying for workplace disability benefits.[48] The key implied term, however, is the duty of good faith, or “mutual trust and confidence”. This is a flexible concept that is applied in a broad variety of circumstances leading to remedies in damages or an injunction, such as to require employers do not act in an authoritarian manner,[49] call employees names behind their back,[50] treat workers unequally when upgrading pay,[51] run the company as a front for international crime,[52] or exercise discretion to award a bonus capriciously.[53] There is tension among judges about the extent to which the core implied term of mutual trust and confidence can be 'contracted out of', with the House of Lords having held that the parties are "free" to do so, while others approach the question as a matter of construction of the agreement which is within exclusive judicial competence to define.[54]

The second, and older hallmark of the employment contract is that employees are bound to follow their employers’ instructions while at work, so long as that does not contravene statute or their agreed terms. Every employment relation leaves the employer with a residue of discretion, historically expressed as the ‘master-servant’ relationship. Today, in practice, this leaves the employer with the ability to vary the terms of work in accordance with business need.[55] The courts have allowed this to continue, so long as it does not contradict a contract’s express terms, which always require an employee’s consent,[56] or renegotiation of a collective agreement.[57] However, it has also been held that employers may insert ‘flexibility clauses’ allowing them to reserve the right to vary any contract term.[58] The limits of the courts’ tolerance of such practices are evident if they touch procedures for accessing justice,[59] or potentially if they would contravene the duty of mutual trust and confidence.

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Health and safety[show]

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Health and safety sources

Main articles: Occupational safety and health, Health and Safety at Work etc. Act 1974, and English tort law, Insurance in the United Kingdom, and National Health Service

One of the principle terms that accompanies the employment relationship is that the employer will provide a "safe system of work". As the industrial revolution developed, accidents from a hazardous working environment were a front line target for labour legislation, as a series of Factories Acts, from 1802, required minimum standards in workplace cleanliness, ventilation, fencing machinery, not to mention restrictions on child labour and limits to the working day. These Acts typically targeted particular kinds of workplaces, such as mines, or textile mills, before the more generalised approach took hold now seen in the Factories Act 1961. That applies to any workplace where an article is made or changed, or animals are kept and slaughtered.[60] The Employer's Liability (Defective Equipment) Act 1969 made employers automatically liable for equipment with defects supplied by third parties. Because isolated employees lack the technical skill, time, training to litigate, such regulation's primary line of enforcement was through inspectors or agencies before matters went to court. Today the Health and Safety at Work etc. Act 1974, enforced by the Health and Safety Executive, is the main law. The HSE can delegate enforcement to local authorities, whose inspectors have the power to investigate and require changes to workplace systems. In addition, HSWA 1974 section 2 foresees that employees will set up their own workplace committees, elected by the employees and with the power to codetermine health and safety matters with management. Spelling out the general duties found in HSWA 1974, are a set of health and safety regulations, which must also stay in line with the European-wide harmonised requirements of the Health and Safety Directive.[61]

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