United Kingdom labour law 2 страница

19th century regulation limited child labour and working time in factories and mines, but employers were not always liable for accidents until 1937.

While the modern scheme of legislation and regulation engenders a comprehensive approach to enforcement and worker participation for health and safety matters, the common law remains relevant for getting civil law compensation, and some limits on an employers' duties. Although the legislative provisions are not automatic, breach of a statutory duty is evidence that a civil law duty has been breached. Injured employees can generally claim for loss of income, and relatives or dependents recover small sums to reflect distress.[62] In principle, employers are vicariously liable for all actions of people acting for them in the "course of employment" whenever their actions have a "close connection" to the job, and even if it breaks an employer's rules.[63] Only if an employee is on a "frolic of his own", and the employer cannot be said to have placed him in a position to cause harm, will the employer have a defence. Under the Employers’ Liability (Compulsory Insurance) Act 1969, employers must take out insurance for all injury costs, and insurance companies are precluded by law and practice from suing their employees to recover costs unless there is fraud.[64] However, until the mid 20th century there were a series of major limitations. First, until 1937, if an employee was injured by a co-worker, the doctrine of common employment, the employer could only be liable if it was shown they were personally liable by carelessness in selecting staff.[65] The House of Lords changed this in Wilsons & Clyde Coal Co Ltd v English,[66] holding an employer had a non-delegable duty of care for all employees. Lord Wright held there were "fundamental obligations of a contract of employment... for which employers are absolutely responsible". The second old restriction was that, until 1891, volenti non fit injuria meant workers were assumed to voluntarily accept the dangers of their work by agreeing to their contracts of employment.[67] Only if an employee callously ignores clear directions of the employer will he be taken to have voluntarily assumed the risk, like in ICI Ltd v Shatwell[68] where an experience quarry shotfirer said he "could not be bothered" to wait 10 minutes before setting of a detonation, and blew up his brother. Third, even if a worker was slightly at fault, until 1945 such contributory negligence precluded the whole of the claim. Now the court will only reduce damages by the amount the employee contributed to their own injury.[69] The fourth defence available to employers, which still exists, is ex turpi causa non oritur actio, that if the employee was engaged in any illegal activity they may not claim compensation for injuries. In Hewison v Meridian Shipping Services Pte Ltd[70] Mr Hewison concealed his epilepsy so that he could work offshore was technically guilty of illegally attempting to gain a pecuniary advantage by deception under the Theft Act 1968 section 16. After being struck in the head by a defective gangplank he suffered worse fits than before, but the Court of Appeal, by a majority, held his illegal act precluded any compensation.

The common law of tort also remains particularly relevant for the type of liability an employer has where there is scientific uncertainty about the cause of an injury. In asbestos disease cases, a worker may have been employed with at a number of jobs where he was exposed to asbestos, but his injury cannot with certainty be traced to any one. Although he may be able to sue all of them, a number may have already gone insolvent. In Fairchild v Glenhaven Funeral Services Ltd[71] the House of Lords held that if any employer had materially increase the risk of harm to the worker, they could would be jointly and severally liable and could be sued for the full sum, leaving it up to them to seek contribution from others and thus the risk of other businesses' insolvency. For a brief period, in Barker v Corus[72] the House of Lords then decided that employers would only be liable on a proportionate basis, thus throwing the risk of employers' insolvency back onto workers. Immediately Parliament passed the Compensation Act 2006 section 3 to reverse the decision on its facts. It has also been held in Chandler v Cape plc,[73] in 2011, that even though a subsidiary company is the direct employer of a worker, a parent company will owe a duty of care. Thus shareholders may not be able to hide behind the corporate veil to escape their obligations for the health and safety of the workforce.

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Wages and working time

See also: Wage regulation, Working time in the United Kingdom, National Minimum Wage Act 1998, Tax credit, Working time, and Work-life balance[show]

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Sources on wages

Economic theory suggests an excessive minimum wage may raise unemployment as it fixes a price above demand for labour, although a reasonable minimum wage enhances growth because when poorer workers have more to spend it stimulates effective aggregate demand for goods and services.

Since 1998, the United Kingdom has fixed a national minimum wage,[74] and sets outer limits on working time for virtually all workers. Direct wage and working time regulation is a comparatively recent phenomenon, as it was traditionally left to collective bargaining to achieve "a fair day's wage for a fair day's work". The Truck Acts were the earliest wage regulations, requiring workment to be paid in money, and not kind. Now, the Employment Rights Act 1996 section 13 stipulates that employers can only dock employees’ wages (e.g. for missing stock) if the employee consented to deductions in writing. This, however, does not cover industrial action,[75] so following ancient common law on part performance of work, employees who refused to 3 out of 37 hours a week in minor workplace disobendience, had their pay cut for the full 37.[76] From the Trade Boards Act 1909,[77] the UK had set minimum wages according to the specific needs of different sectors of work. But this system was eroded through the 1980s and eventually repealed in 1993.[78] To bring the United Kingdom back into compliance with basic standards in international law,[79] the National Minimum Wage Act 1998 was introduced. The minimum wage takes effect in every worker's contract. Workers do not need to show "mutuality of obligation" or any other requirement except that they personally perform work for a wage and is not a client.[80] One curious exclusion, however, is a pupil barrister who in Edmonds v Lawson QC[81] was held to not be "working" but be "conscientious in receiving instruction". The minimum wage rate is reset annually after guidance from the Low Pay Commission, and on 1 October 2011 it stood at £6.08 for over 21 year olds, £4.98 for 18-20 year olds, £3.68 for under 18 year olds finished with compulsory education and £2.60 for under 19 year olds or first year apprentices.[82] The National Minimum Wage Regulations 1999[83] spell out the details of how the minimum wage should be calculated. Total pay received is divided by the hours actually worked over an average "pay reference period" of one month.[84] This definition has given rise to litigation in cases where a worker can stay at home but must answer phone calls, is allowed to rest or sleep during shifts, or must make herself available "on call" over a long period. Generally speaking, it is irrelevant whether one is at home or not. If a worker is given sleeping facilities and is not awake, the minimum wage need not be paid.[85] And if a worker is "on call", then this time still counts at work if the worker is bound to stay within the vicinity of the workplace.[86] However, an exception in regulation 28 allows an employer to agree with a worker what the hours worked actually are, if they would ordinarily be unmeasured. In Walton v Independent Living Organisation Ltd[87] a worker who cared for a young epileptic lady had to be on call 24 hours a day, 3 days a week, but could do her own activities outside tasks such as going shopping, making meals and cleaning. Her company made an agreement with her that her tasks took 6 hours and 50 minutes a day, which resulted in her £31.40 allowance meeting the minimum wage. Certain deductions may be made including £4.51 per day for any accommodation the employer provides, though extra bills, such as for electricity, should not ordinarily be charged.[88] The minimum wage can be enforced individually through an ERA 1996 section 13 claim for a shortfall of wages in a Tribunal.[89] A worker may not be subjected to any detriment for enquiring, or requesting records or complaining about it.[90] However, because many workers will not understand how to do this, or have the resources, a primary enforcement mechanism is through inspections and compliance notices issued by Her Majesty's Revenue and Customs.[91] A remedy of up to 80 times the minimum wage is available to the worker and HMRC can enforce a penalty of twice the minimum wage per worker per day.[92][show]

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Sources on working time

May Day, a traditional Spring fair synonymous with International Workers' Day, has been a bank holiday since 1978, is one of 8 public holidays, and 28 days of total holiday every UK worker has under the Working Time Directive.

The Working Time Regulations 1998 set limits on working time, and implement the basic requirements of the Working Time Directive.[93] Its most concrete measure is, again following basic rights in international law,[94] mandating a minimum period of 28 days, or four full weeks, in paid holidays for all workers each year (though this includes public holidays).[95] There is no qualifying period for this, or any other working time right,[96] because beyond the importance of the law in seeking to strike a balance between work and life, sufficient periods of rest and leisure are seen as a critical element of workers health and safety.[97] Nor is it possible for an employer to give a worker "rolled up holiday pay", for instance an additional 12.5% in a wage bill, in lieu of taking actual holidays. The employer must make sure the worker does in fact take paid holidays, and if the worker has not done so and the job terminates, the employer must give an additional payment for the unused holiday entitlement.[98] Where a person works at night, she may only do 8 hours in any 24 hour period on average, or simply 8 hours at most is dangerous.[99] Moreover every worker must receive at least 11 consecutive hours of rest in a 24 hour period, and in every day workers must have at least a 20 minute break in any 6 hour period.[100] The most controversial and widely known provisions in the working time laws, however, concern the maximum working week. Under the Directive, this is 48 hours. Although people in the United Kingdom work the longest hours on average in Europe, and among the longest in the world, highest work related stress and absentee rates, successive UK governments have remained sceptical about the maximum working week's merit. The maximum does not apply to anyone who is self-employed or who can set their own hours of work, as it is aimed to protect workers who possess less bargaining power and autonomy over the way they do their jobs.[101] Nevertheless, all UK workers may "opt out" of the 48 hour week by individually signing an opt out form.[102] Theoretically a worker may always change her mind after having opted out, without suffering any detriment.[103] If the employer has not got the worker to opt out, then the 48 hour week is not a rigid maximum, but is taken as an average over 17 weeks.[104] The same rules have developed as for the minimum wage, regarding "on call" time, so that people with jobs involving long periods where they must make themselves available, but not necessarily be active, are regarded as working if they are bound to remain awake and close to their workplace.[105] This created a significant problem for junior doctors, where the culture has typically been in all European countries that very long hours are expected. The European Court of Justice's decision in Landeshauptstadt Kiel v Jaegar[106] that junior doctors' on call time was working time led a number of countries to exercise the same "opt out" derogation as the UK, albeit limited to medical practice. The Health and Safety Executive is the UK body charged with enforcing the working time laws, though it has purposively taken a "light touch" approach to enforcement.

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Child care and time off

Main article: Child care in the United Kingdom[show]

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Sources on child care

Rights to leave from work to care for children have important consequences for career advancement and gender equality. The major right, which goes beyond the minimum set by the Pregnant Workers Directive,[107] is a mix of paid and unpaid maternity leave. A contract of employment can always be and often is more generous. Otherwise, the minimum right to paid maternity leave arises for women employees after 26 weeks work, though the right to unpaid leave has no qualifying period.[108] Under the Maternity and Parental Leave, etc Regulations 1999[109] mothers must take compulsory leave at the time of child birth for two weeks. After that comes a right to 6 weeks' leave paid at 90 per cent of ordinary salary. Then is 20 weeks leave paid at a rate set by statute, which was £123.06 per week in 2010. This has to be at least the same level as statutory sick pay.[110] Then she may take additional but unpaid maternity leave for another 26 weeks.[111] She must tell the employer 15 weeks before the date of the expected birth, in writing if the employer requests it. Except insofar as they administer the payments, employers do not bear most costs of maternity leave as they are reimbursed by the government according to their size and national insurance contributions.[112] Along with different forms of leave, mothers have the right to not suffer any professional detriment or dismissal while they are absent, and should be able to return to the same job after 26 weeks, or another suitable job after 52 weeks.[113]

UK employers are reimbursed by the government when employees take paid leave for child care.[114]

For fathers, the position is less generous. To redress the balance between how much of child raising each partner bears, under the Additional Paternity Leave Regulations 2010[115] it will be possible for a women to transfer up to 26 weeks of her leave entitlements to her male partner. Otherwise the Paternity and Adoption Leave Regulations 2002 state that a man is entitled to a minimum of just 2 weeks off, at the statutory rate of pay.[116] Both parents may also benefit from "parental leave" provisions in the MPLR 1999, passed after the Parental Leave Directive.[117] Until a child turns 5, or a disabled child turns 18, parents can take up to 13 weeks unpaid leave.[118] Unless there is another collective agreement in place, employees should give 21 days notice, no more than 4 weeks in a year, at least 1 week at a time, and the employer can postpone the leave for 6 months if business would be unduly disrupted.[119] Otherwise similar provisions apply on employees not suffering detriment or dismissal and having a right to their previous jobs back.[120] "Emergency leave" is, under ERA 1996 section 57A, available for employees to deal with birth or a child's issues at school, as well as other emergencies such as dependents' illness or death, so long as the employee informs the employer as soon as reasonably practicable. In Qua v John Ford Morrison Solicitors[121] Cox J emphasised that there is no requirement to deliver daily updates.

Beyond the period around child birth, after EA 2002, employees gained the right to request flexible working patterns for the purpose of caring for a child under the age of 6, or a disabled child under age 18. The right to make the request is contained in ERA 1996 section 80F, and despite the fact that employers may decline the request, statistics show that under the obligation to consider, employers grant requests in 80 per cent of cases. An employee must make the request in writing, the employer must reply in writing, and can only decline the request on the basis of a correct fact assessment,[122] and within 8 grounds listed in section 80G, which generally concern business and organisational necessity. In Commotion Ltd v Rutty[123] a toy warehouse assistant was refused a reduction to part time work because, according to the manager, everyone needed to work full time to maintain "team spirit". The Employment Appeal Tribunal ruled that because "team spirit" was not one of the legitimate grounds for refusal, Mrs Rutty should get compensation, which is set at a maximum of 8 weeks' pay.[124]

Instituto nazionale della providenza social v Bruno [2010] IRLR 890, part time workers and occupational pensions

Apprenticeships, Skills, Children and Learning Act 2009 (c 22)

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Occupational pensions[show]

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Sources on pensions

Main article: Pensions in the United Kingdom

Occupational pension schemes are one of the three pillars of pension provision in the UK, in addition to the state pension administered by the government based on National Insurance contributions, and private, or "personal pensions" which individuals may arrange for themselves.[125] After the Pensions Act 2008, and due to begin in October 2012, every "jobholder" (defined as a worker, age 16 to 75, with wages between £5,035 and £33,540[126]) must be automatically enrolled by the employer in an occupational pension scheme, unless they choose to opt out.[127] In order to reduce the administrative complexity, a new non-departmental trust fund called the National Employment Savings Trust is established as a cheaper public competitor, able to take advantage of significant economies of scale, compared to existing fund manager options on the private pension market.[128] Employers will be required to set aside their jobholders' wages at an agreed percentage, and negotiate how much they will give in contributions, if anything. Outside this "public option", it has typically been up to the employer often in negotiation with the trade union, to establish a trust fund for pension schemes, however there has not yet been any legal duty on employers to do so, leaving most people with nothing but the state pension.[129] However, when there is a pension in place as a result of a term in the jobholder's employment contract, the employer is under a duty to inform their staff about how to make the best of their pension rights.[130] Moreover, workers must be treated equally, on grounds of gender or otherwise, in their pension entitlements.[131] Where occupational pensions exist, the employer typically acts as a trustee and creates a board of trustees, or contracts with a trust corporation, to oversee the management of the workforce's pension savings. Following the Goode Report of 1993 on pensions, it has been a requirement that the pension trust members have the right to "codetermine" the pension management by having a vote to elect a minimum of one third of the trustees, or corporation directors, either directly or through their trade union.[132] Often member nominated trustees are one half of the scheme, and the Secretary of State has the power by regulation, as yet unused, to increase the minimum up to one half.[133] Trustees are charged with the duty to manage the fund in the best interests of the beneficiaries, in a way that reflects their preferences,[134] by investing the savings in company shares, bonds, real estate or other financial products.

Every jobholder will from 2012 be automatically enrolled in an occupational pension, and can codetermine how their retirement savings are invested and their voice in company shares is used.[135]

While there are minimum standards for worker participation in the management of any occupational pension, the terms of people's pensions may be very different particularly regarding who bears the risk of workers having a long life after retirement. Increasingly, "defined benefit" plans (or "final salary" schemes) where the employer pays a fixed sum however long the former worker lives and thus averages out the risk between different workers, have been scrapped. The contrasting system is a "defined contribution" plan, where individual workers simply retire with a pension that is as much as the contributions they made, meaning that if they live longer than they plan, they run the risk of being left with only the state pension. Some schemes combine elements of each. The rate of decline in defined benefit plans has been rate consistent with the decline in trade union membership, and increasing mobility of the labour market. Defined benefit plans also attract more regulation, as many employers have not necessarily actually kept aside money from "contributions" shown workers' pay slips, since the employer simply pays the final salary out when the time comes. This problem, revealed in early 1990s scandals like the Robert Maxwell scandal, led to the introduction of requirements for minimum funding, and also taking out insurance in the event that a company goes insolvent, and the pension fund is in deficit.[136] This system is overseen by the Pensions Regulator,[137] which also takes general complaints about the activities of trustees or management. In addition, there exists a Pensions Ombudsman who may hear complaints and take informal action against employers who fall short of their statutory duties.[138]

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Income tax and insurance

See also: Taxation in the United Kingdom, National Insurance, and Tax credit

UK tax history and Taxation in medieval England

Income Tax Act 1803 to fund the Napoleonic Wars, repealed and then reintroduced by Robert Peel in the Income Tax Act 1842

National Insurance Fund, whereby people pay for their (1) state pensions (2) unemployment insurance (3) redundancy protection (4) contributions to health care.

Beveridge Report

IR35, disguised employment

Income Tax (Earnings and Pensions) Act 2003 and Social Security Contributions (Intermediaries) Regulations 2000, SI 2000/727

Income Tax Act 2007, mostly replacing Income and Corporation Taxes Act 1988

Income Tax (Earnings and Pensions) Act 2003

Income Tax (Trading and Other Income) Act 2005

Tax return (United Kingdom) include the P35 form filled out by employers for the employees' tax. In the PAYE series, a P60 form from employers proving tax was paid at the end of the year, P45 a form when employment ceases recording tax up to the end of employment. P11D is a form for employers to disclose expenses and benefits given to employees earning over £8500 that do not go through the payroll. Each person has an individual Tax code (PAYE). Similar abbreviations for forms are used for self-assessment and tax credits, eg S100 and TC600.

Finance Act 2010 section 2 and Schedule 1, introducing the temporary bank payroll tax

Working tax credit and Child tax credit, to be replaced by the Universal credit in 2016

Child benefit, a weekly payment of over £20 a week for the first child, and over £13 a week for each additional child. Introduced by the Family Allowances Act 1945, followed by the Family Allowances and National Insurance Act 1952 and the Family Allowances Act and National Insurance Act 1956

Pension tax simplification in 2004, simplified the taxes applied to pensions. It abandoned the retirement annuity plan that had existed from the Income and Corporation Taxes Act 1970 s 226 contracts and ICTA 1988 s 620

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Civil liberties at work

See also: Civil liberties in the United Kingdom

Common law and mutual trust and confidence

Human Rights Act 1998 ss 3-6

ECHR article 8, right to privacy

Halford v United Kingdom [1997] IRLR 471

Smith and Grady v United Kingdom [1999] IRLR 734

Kara v United Kingdom (1998) No. 36528/97 ECHR

ECHR article 10, right to freedom of expression

Pay v United Kingdom [2008] ECHR 1007, [2009] IRLR 139

Glasenapp v Germany (1987) 9 EHRR 25

Vogt v Germany (1996) 21 EHRR 205

Ahmed v United Kingdom (1998) EHRR 29

Grigoriades v Greece (1997) 27 EHRR 464

ECHR article 6, right to a fair trial

R (Wright) v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267

ECHR Prot 1, art 1, right to property

Nerva v United Kingdom [1996] IRLR 461; (2003) 36 EHRR 4, [2002] IRLR 815

The right with the greatest direct impact for labour law is the right to freedom of association under ECHR article 11.

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Workplace participation

One of the earliest episodes of strike action, the Peasants' Revolt of 1381 was met with strict regulation of medieval workers' wages.

See also: UK company law and Labour law

While an enforceable charter of employment rights guarantee a minimum of workplace decency, like a minimum wage, the most important right to achieve conditions beyond the minimum, like a living wage, is the right to participate in a firm's management. Increasingly the UK is legalising and codifying its systems of collective labour relations, with rights to information, consultation (on redundancies, business restructuring and management generally) and participation (so far, in pension management and health and safety committees) in workplace and company affairs. Trade unions, organised largely by contract, have the aim of improving their members' terms and conditions.[139] They must follow a democratic internal structure, and members cannot be excluded without good reason or discriminated against by their employers. Although information, consultation and participation rights are not bound to a trade union, especially where none exists in the workplace, unions often organise the workforce's collective voice. Where statutory rights to participation and consultation run out, collective bargaining by unions is the most potent form of influence workers can have against their employers, as a counterweight in companies to the interests of directors and shareholders. Since 1999, unions can follow a complex statutory procedure which will eventually mandate that employers recognise and bargain with them. Collective agreements will typically set a transparent scale of pay and working hours, or terms like pensions, training and workplace facilities, with a system to update terms and conditions as the business environment changes. The ability to bargain rests on the final resort of industrial action. Just as management, typically with the objective of increasing profits, has the power to make workers redundant,[140] so an official trade union is protected by law in its ability to call a strike. Industrial action must always be "in contemplation or furtherance of a trade dispute".[141] Since the 1980s, there have also been strict requirements to ballot the workforce and warn the employer before, to not call sympathy strikes, and to take only passive action in picketing or protests.

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Trade unions[show]

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Sources on trade unions

See also: Trade unions in the United Kingdom and Voluntary association

Much like corporations,[142] until the Combination Act 1825 trade unions were regarded as criminal, or at best as quasi-legal organisations, subjected to the restraint of trade doctrine, until the Trade Union Act 1871. This Act abolished common law restrictions, but took an abstentionist stance to unions internal affairs. The structure of the unions were based in contract and the rights of members depended on being able to show some proprietary interest to be specifically enforced.[143] This meant that the express terms of the union rule book can, like any contract, be supplemented with implied terms by the courts as strictly necessary to reflect the reasonable expectations of the parties,[144] for instance, by implying the Electoral Reform Society's guidance to say what happens in a tie break situation during an election when the union rules are silent.[145] If there are irregular occurrences in the affairs of the union, for instance if negligence or mismanagement is alleged and a majority could vote on the issue to forgive them, then members have no individual rights to contest executive decision making.[146] However, if a union's leadership acts ultra vires, beyond its powers set out in the union constitution, if the alleged wrongdoers are in control, if a special supra-majority procedure is flouted, or a member's personal right is broken, the members may bring a derivative claim in court to sue or restrain the executive members. So in Edwards v Halliwell[147] a decision of the executive committee of the National Union of Vehicle Builders to increase membership fees, which were set in the constitution and required a ⅔ majority vote, was able to be restrained by a claim from individual members because this touched both a personal right under the constitution and flouted a special procedure. The principle that the common law enforced a union's own rules, and that unions were free to arrange their affairs is reflected in the ILO Freedom of Association Convention, and article 11 of the European Convention on Human Rights, subject to the requirement that regulations "necessary in a democratic society" may be imposed. Unions must have an executive body and that executive must, under TULRCA 1992 sections 46 to 56, be elected at least every five years, directly in a secret, equal postal vote of union members, and if irregularities are alleged, complaints can be taken up by the Trades Union Certification Officer.

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