United Kingdom labour law 3 страница

The ETUC, headed by Wanja Lundby-Wedin until May 2011, is the union federation for 37 European countries, the counterpart for the TUC of the UK and the ITUC internationally.

Members rights against the union: exclusion, disputes and political donations

Bridlington Principles and TUC, Disputes Principles and Procedures (2000)

ASLEF v United Kingdom [2007] ECHR 184

Esterman v NALGO [1974] ICR 625

Members rights to not suffer detriment from the employer

Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924, Mummery LJ, a tribunal had not erred in finding that a worker given a final written warning which was not for the sole purpose of a penalty for trade union activities, was not a detriment under TULRCA 1992 s 146.

Members rights to time off for recognised union duties

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Participation[show]

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Workplace participation sources

See also: Codetermination, UK company law, and Works council

Direct participation rights in UK companies operate on a limited legal scope. In 19 out of 27 EU member states employees have participation rights, including the election of members of the boards of directors, and binding votes on decisions about individual employment rights, like dismissals, working time and social facilities or accommodation.[148] At board level, UK company law allows for any desired measure of employee participation, including alongside shareholders in the general meeting and on the board of directors. Although shareholders typically are the only ones with votes in the company's general meeting to elect the board of directors, the Companies Act 2006 section 168 defines only "members" as those with participation rights. Under section 112 a "member" is anybody who initially subscribes their name to the company memorandum, or is later entered on the members' register, and is not required to have contributed money as opposed to, for instance, work. Moreover under the European Company Statute, businesses that reincorporate as a Societas Europaea may opt to follow the Directive for employee involvement.[149] An SE may have a two-tiered board, as in German companies, where shareholders and employees elect a supervisory board that in turn appoints a management board responsible for day to day running of the company. Or an SE can have a one tiered board, as every UK company, and employees and shareholders may elect board members in the desired proportion.[150] An "SE" can have no fewer employee participation rights than what existed before, but for a UK company, there is likely to have been no participation in any case. In the 1977 Report of the committee of inquiry on industrial democracy[151] the Government proposed, in line with the new German Codetermination Act 1976, and mirroring an EU Draft Fifth Company Law Directive, that the board of directors should have an equal number of representatives elected by employees as there were for shareholders. But reform stalled, and was abandoned after the 1979 election.[152] Despite successful businesses like the John Lewis Partnership and Waitrose that are wholly managed and owned by the workforce, voluntary granting of participation is rare. Many businesses run employee share schemes, particularly for highly paid employees, however such shares seldom compose more than a small percentage of capital in the company, and these investments entail heavy risks for workers, given the lack of diversification.

There are, however, direct participation rights in two key areas of workplace issues, albeit not dismissals or working time. First, the Health and Safety at Work Act 1974 section 2 requires that workers set up health and safety committees, which codetermine the workplace policy on health and safety issues. Second, the Pensions Act 2004 sections 241-243 state employees must be able to elect a minimum of one third of the management of their occupational schemes, as "member nominated trustees". This gives employees the ability, in principle to have a voice on how their pension money is invested in company shares, and also how the voting power attached to company shares is used. Outside these areas, however, participation at work is limited to information, consultation, collective bargaining and industrial action.

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Information and consultation[show]

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Information and consultation sources

Formal, and individual information and consultation rights have been a recent development, mostly deriving from EU law. Domestically, the Companies Act 2006 requires in section 419 that companies issue an annual report, which must include details of how, under section 172, the business has fulfilled its duties to have regard to employees, people working down supply chains, the community, environment and long term performance. Such information can often be cursory, but may be useful for employees, and unions, in the use of their participation rights, or during collective bargaining. Consultation can sometimes encourage a change in employers' policy, even if employees' views are ultimately often ignored.

Under the Information and Consultation of Employees Regulations 2004,[153] companies with more than fifty employees must inform their workforce about major economic issues in their enterprise, and should consult about major changes, particularly redundancies.

European Works Council Directive 2009/38/EC

S Laulom, 'The Flawed Revision of the European Works Council Directive (2010) 39(2) Industrial Law Journal 202-208.

Stewart v Moray Council [2006] IRLR 592.

Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606

Joint Industrial Council

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Collective bargaining

Otto Kahn-Freund (1990-1979) was a Berlin Labour Court judge who fled the Nazi regime in 1933, shaped collective bargaining for the mid-20th century, as a model of "collective laissez-faire".

ECHR article 11, freedom of association

R (NUJ) v CAC [2005] IRLR 28 (CA)

R (Kwik-Fit) v CAC [2002] EWCA Civ 512

Fullerton Petitioner [2001] IRLR 572

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Industrial action

See also: Industrial action in the United Kingdom, Strike action, and Picketing (protest)

Economic torts

Trade Disputes Act 1906

Right to strike

TULRCA 1992 s 244, meaning of trade dispute

Secondary action

Picketing

Balloting

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Equality

Main article: UK employment equality law

The US civil rights movement, which led to the Civil Rights Act 1964 was the first modern equality law for the workplace, from which the Equality Act 2010 takes inspiration.

The principle that people should be judged according to the content of their character, and not another irrelevant status, is fundamental to UK and EU law. The Equality Act 2010 reaches beyond employment, into access to private and public services, but in the field of work it largely reflects three major EU Equality Directives and case law,[154] which like former UK legislation were particularly inspired by the US Civil Rights Act 1964. As it stands, the UK requires equal treatment based on ten major grounds. Beyond the absolute prohibition of discrimination against trade union members,[155] the EA 2010 combats discrimination based on gender (including pregnancy), race, sexuality (including marital status), belief, disability and age.[156] This is supplemented by milder regulation in statutory instruments of discrimination against people in atypical work, who are often minorities, with part time, fixed term or agency work status.[157] This ‘negative’ and fixed definition of equality stipulates which characteristics are generally to be disregarded in employment. It does not set out what positive characteristics are relevant, like unfair dismissal rules, or catch 'any other status', like the European Convention.[158] Unequal treatment on other grounds (eg one's football team) will only be unlawful if one can claim unfair dismissal. A worker has generally to show that they were treated directly less favourably than another person who does not have their trait (eg sexuality or race), or that actions an employer applies to everyone have an indirectly disparate impact on people with their trait. Workers are also entitled to not suffer harassment at work, and if they bring a claim they should not be victimised, or suffer any other disadvantage for trying. Direct discrimination can be justified if the employer shows a status is a "genuine occupational requirement". Indirect discrimination can be justified if there is “objective justification” for the rule, generally based on business necessity. Age discrimination is seen as a special case, so it may always be objectively justified. Equal pay between men and women has also, historically, been treated separately in law and follows differently worded legal requirements. The law on disability goes further than other categories by placing positive duties on employers to make reasonable adjustments to help disabled people. While UK and EU law presently only allow promotion of underrepresented groups if a candidate is equally qualified, there is an ongoing debate whether more “positive action” measures should be implemented, particularly to tackle the gender pay gap. If discrimination is proven, it counts as automatically unfair conduct in a tribunal hearing, and entitles a worker to quit and or claim damages.

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Discrimination[show]

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Direct discrimination cases

See also: Workplace bullying and Harassment in the United Kingdom

UK and EU law divide discrimination into direct and indirect forms. Direct discrimination means treating a person of a protected trait less favourably than a comparable person who does not share that trait.[159] This is an objective test, so that it is irrelevant what motive the employer had. Even if it was “positive” discrimination, in the sense that the purpose was to help an underprivileged group, this is still unlawful.[160] The claimant's trait merely has to be the reason for the unfavourable treatment.[161] An appropriate comparator is one who is the same in all respects except for the relevant trait, which is claimed as the ground for discrimination. For instance in Shamoon v Chief Constable of the Royal Ulster Constabulary[162] a chief inspector claimed that she was dismissed because the police force was sexist, and pointed to male chief inspectors who had not been treated unfavourably. The House of Lords overturned a Tribunal finding of sex discrimination because Ms Shamoon had had complaints made about her appraisal duties, and her chosen comparators had none.[163] Generally there is, however, no need to point to an actual comparator, so a claimant can allege they were treated less favourably than a hypothetical person who does not share their trait would have been. The burden of proof is explicitly regulated so that claimants merely need to show a set of facts from which a reasonable tribunal could conclude there was discrimination, and need not show an intention to discriminate.[164] Because the law aims to eliminate the mindset and culture of discrimination, it is irrelevant whether the person who was targeted was themselves a person with a protected characteristic, so that people who associate with or are perceived to possess a protected characteristic are protected too. In Coleman v Attridge Law a lady with a disabled child was abused by her employer for taking time off to care for the child. Even though Ms Coleman was not disabled, she could claim disability discrimination.[165] And in English v Sanderson Blinds Ltd, a man who was from Brighton and went to boarding school was teased for being gay. Even though he was married with children, he successfully claimed discrimination because of sexuality.[166] An instruction by an employer to discriminate against customers or anyone else also violates the law.[167]

Under the Equality Act 2006, the Equality and Human Rights Commission, with offices near City Hall, London, promotes equality by intervening in discrimination cases, providing guidance and making investigations into workplace practices.[show]

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Harassment cases

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Victimisation cases

Originally a sub-category of direct discrimination, harassment is now an independent tort which requires no comparator. The Protection from Harassment Act 1997, and now the Equality Act 2010 sections 26 and 40, define harassment as where a person's dignity is violated, or the person is subject to an intimidating, hostile, degrading, humiliating or offensive environment. An employer will be liable for its own conduct, but also conduct of employees, or customers if this happens on 2 or more occasions and the employer could be reasonably expected to have intervened. In a straightforwardly unpleasant case, Majrowski v Guy's and St Thomas’s NHS Trust[168] a gay man was ostracised and bossed about by his supervisor from the very start of his work as a clinical audit co-ordinator. The House of Lords held the laws create a statutory tort, for which (unless a statute says otherwise) an employer is automatically vicariously liable. Under the Equality Act 2010 section 27, an employer must also ensure that once a complaint is brought by a worker, even if it proves ultimately to be unfounded, that worker should not be victimised. This means the worker should not be subject to anything that a reasonable person would perceive as deterimental. In St Helen’s MBC v Derbyshire[169] the House of Lords held a council victimised female staff who were pursuing an equal pay claim when it sent letters warning (without much factual basis) that if the claim went ahead, the council would be forced to cut school dinners and make redundancies. A reasonable person would have regarded this as a detriment. By contrast, in Chief Constable of West Yorkshire Police v Khan,[170] where a sergeant with a pending race discrimination claim was denied a reference by the employer that he was suing, it was held this could not be considered victimisation because the Constabulary was only seeking to protect its legitimate interests and not prejudice its own future case in the discrimination hearings.[show]

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Indirect discrimination cases

"Indirect" discrimination means an employer, without an objective justification, applies a neutral rule to all employees, but it puts one group at a particular disadvantage.[171] The particular disadvantage must be related to the claimant's protected characteristic specifically, and not to a non-essential feature of it. In Ladele v Islington LBC a woman who refused to register gay civil partners, because she said her Christianity made her conclude homosexuality was wrong, was dismissed for not carrying out her duties. And in Eweida v British Airways plc a lady who wished to wear a cross claimed that BA's instruction to remove it was indirectly discriminatory against Christians. Both claims failed because it was held that neither antipathy towards homosexuals, nor crucifix jewellery are essential parts of the Christian religion.[172] The question of particular disadvantage also typically relies on evidence of statistical impact between groups. For instance in Bilka-Kaufhaus GmbH v Weber von Hartz[173] an employer set up pensions only for full time workers, and not for part time workers. But 72 per cent of part time workers were women. So Frau Weber von Hartz was able to show that this rule put her, and women generally, at a particular disadvantage, and it was up to the employer to show there was an objective justification. Statistics might be presented in a misleading way (eg a measure could affect twice as many women as men, but that is only because there is 2 women and 1 man affected in a workforce of 100). Accordingly the correct approach is to show how many people in the affected workforce group are put at an advantage, and then if there is a statistically significant number of people with a protected characteristic who are not advantaged, there must be an objective justification for the practice. In R (Seymour-Smith) v Secretary of State for Employment[174] the UK government's former rules on unfair dismissal were alleged to be discriminatory. Between 1985 and 1999, the government had made the law so that people had to work for 2 years before they qualified for unfair dismissal (as opposed to 1 year presently), and this meant that there was a 4 to 8 per cent disparity between the number of men and women who qualified on dismissal for a tribunal claim. Following ECJ guidance, the House of Lords held by a majority that this was a large enough disparity in coverage, which required justification by the government.

TFEU art 157, equal pay and types of comparator

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Justification[show]

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Sources on justifying discrimination

Harassment and victimisation cannot be justified, but in principle there are exceptions or justifications for all forms of direct and indirect discrimination. Apart from direct age discrimination which can also be objectively justified, the general rule for direct discrimination, elaborated in EA 2010 Schedule 9,[175] is that an employer may be exempt if it can show that having a worker fit a particular description is a "genuine occupational requirement", so that the otherwise discriminatory practice pursues a legitimate aim and is applied proportionately. The test is stringent, so in Etam plc v Rowan[176] it was held that when a man was turned down for a job at a woman's clothing store, the excuse that a man should not operate women's change rooms was rejected. The shift allocation could have been changed around easily. Controversially, the European Court of Justice has repeatedly said that it is within a member state's margin of discretion to say being male is a genuine occupational requirement for work in the military.[177] This was even so, in Sirdar v The Army Board & Secretary of State for Defence[178] for a lady who applied to work as a chef in the Royal Marines, because the policy on "interoperability" meant every member had to be capable of combat.[179] Cases involving religion are subject to a special provision, so that if a job's functions require adherence to an organisation's ethos, the organisation has an exemption from direct discrimination. In an action for judicial review of the legislation,[180] Richards J rejected that a faith school would be exempt in any way, rather than an actual religious establishment like a church. Even there, it was rejected that a gay person could be dismissed from a job as a cleaner or bookshop worker, if that was incompatible with the religious "ethos", because the ethos would not be a genuine requirement to carry out the job.

Indirect discrimination, after a neutral practice puts a member of a group at a particular disadvantage, is not made out if there is an "objective justification". In most cases, this will be a justification based on business necessity.[181] The ECJ, mostly in cases concerning sex discrimination under TFEU art 157, has held that an employer must show a "real need" for the practice that has disparate impact that is "unrelated" to the protected characteristic,[182] should not involve "generalisations" rather than reasons specific to the workers in question,[183] and budgetary considerations alone are not to be considered an "aim".[184] Many of these judgments concerned employers who paid part time staff fewer benefits than full time staff, and given the particular disadvantage this caused women it was hard to justify. In equal pay claims based on gender, instead of "objective justification", the old terminology still used is that there must be a "genuine material factor", found in EA 2010 section 69. Despite different headings, the same underlying concepts are present as for objective justification, with the need to show a "legitimate aim" and that action is "proportionate" to such an aim. In Clay Cross (Quarry Services) Ltd v Fletcher[185] Lord Denning MR held that an employer could not justify paying a young man a higher wage than an older lady (who in fact trained him) on the basis that this was what the employer had to pay given the state of the job market. However, in Rainey v Greater Glasgow Health Board[186] the House of Lords held that women NHS prosthetists who were paid 40% less than men prosthetists in contracted through private practices had no claim, as it was shown necessary to attract their services. This was an organisational necessity.[187] In Enderby v Frenchay Health Authority[188] the ECJ held that although a speech therapist being paid less than male counterparts could not be justified only on the ground that this resulted from different collective agreements, if a disparity came from market forces, this was an objective justification. It has, however, been emphasised that the legislation's purpose is to achieve equal pay, and not fair wages. So in Strathclyde RC v Wallace[189] the House of Lords held that women teachers who had to fill in for an absent male head master were not entitled to be paid the same during that time. This was a different job. It has also been asserted that collective agreements designed to incrementally make a transition to equal pay between jobs rated as equivalent cannot be justified,[190] and can even result in liability for the union that concluded them.[191]

Unlike other protected characteristics, under EA 2010 section 13(2), direct age discrimination is open to justification on the same principles, on the basis that everyone will go through the ageing process.[192] This has meant, primarily, that older workers can reach a compulsory retirement age set either by the workplace or the government, on the basis that it is a legitimate way of sharing work between generations.[193]

Sunday working, or time off for prayer

Qualifications, experience, administration and/or market necessity?

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Disability and positive action[show]

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Disability cases

See also: Disability and Affirmative action

According to Chacón Navas v Eurest Colectividades SA[194] disabilities involve an impairment "which hinders the participation of the person concerned in professional life". Because treating disabled people equally based on ability to perform tasks could easily result in persistence of exclusion from the workforce, employers are bound to do as much as reasonably possible to ensure participation is not hindered in practice. Under the Equality Act 2010 sections 20 to 22, employers have to make "reasonable adjustments", for example in changing a workplace practice if it would create a disadvantage, changing physical features of a workplace, or providing auxiliary aids to work. More detailed examples are found in Schedule 8, and provided in guidance by the Equality and Human Rights Commission. In the leading case, Archibald v Fife Council,[195] it was held that the council had a duty to exempt a lady from competitive interviews for a new job. Mrs Archibald, previously a road sweeper, had lost the ability to walk after complications in surgery. Despite over 100 applications for grades just above a manual worker, in her submission, the employers were not looking past her history as a sweeper. The House of Lords held it could be appropriate, before such an ordeal, for a worker to fill an existing vacancy without a standard interview procedure. By contrast, in O’Hanlon v Revenue and Customs Commissioners[196] the Court of Appeal rejected that it would be a reasonable adjustment, as Ms O'Hanlon was requesting after falling into clinical depression, for an employer to increase sick pay to full pay, after the expiry of a six month period that applied to everyone else. A reasonable adjustment should not be a disproportionate burden, with regard to an employer's resources, and fairness among staff.

Lawful positive action in the UK includes setting quotas for people in representative positions, and in some EU member states is being used to mandate quotas for women on company boards of directors.[show]

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Positive action cases

For characteristics other than disability, "hard" positive discrimination, such as preference in contract terms, hiring and firing based on gender, race, sexuality, belief or age, or setting quotas for underrepresented groups in jobs, is unlawful throughout the European Union. The EU allows only for "soft" positive action, in contrast to the United States, where "affirmative action", although contested,[197] operates in many workplaces. In the case of hiring candidates for work, employers may select someone from an under-represented group, but only if that person has qualifications equal to competitors, with full consideration of the candidate's individual qualities.[198] In Marschall v Land Nordrhein Westfalen[199] a male teacher failed to get a promotion, and a woman did. He complained that the school's policy, to promote women "unless reasons specific to an individual candidate tilt the balance in his favour", was unlawful. The ECJ held the school would not be acting unlawfully if it did in fact follow its policy. By contrast in Abrahamsson and Anderson v Fogelqvist[200] Göteborg University's policy was to hire a woman candidate unless "the difference between the candidates’ qualification is so great that such application would give rise to a breach of the requirement of objectivity". A male candidate, who was not hired over two less qualified women, was successful in claiming discrimination. In addition, according to Re Badeck’s application[201] legitimate positive action measures include quotas in temporary positions, in training, guaranteeing interviews to people with sufficient qualifications and quotas in representative, administrative or supervisory bodies. This approach, developed initially in ECJ case law, is now reflected in the Treaty on the Functioning of the European Union article 157(4) and was put into UK law in the Equality Act 2010 sections 157-158.

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Atypical work

Main articles: UK part-time work, UK fixed-term work, and UK agency work[show]

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Sources on atypical work

Outside the Equality Act 2010, and the EU Directives that target discrimination based on a fixed status, the law has a series of measures, albeit weaker, to counteract discrimination against people who hold non-permanent contracts. An important reason for the trio of the Part-time Workers Directive,[202] the Fixed-Term Work Directive[203] and the Temporary and Agency Work Directive[204] is that people doing such work often fall into the same groups as those seeking protection under the EA 2010. Each are implemented by domestic legislation, but have come under criticism for their restrictive nature. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000[205] state that part time workers cannot, without objective justification, be treated less favourably than a comparable full time worker. Accordingly not just indirect discrimination, but also direct discrimination can be objectively justified, as it can for age. However, unlike the general scheme of the EA 2010, a worker cannot compare themselves to a hypothetical full time worker. While the law is generally effective at preventing people in the same workplace from being treated differently, part time workers across the UK economy remain underpaid compared to full time workers as a whole, because workplaces tend to be structurally segregated, often where women are working as part timers.[206] One of the first leading cases, Matthews v Kent and Medway Fire Authority,[207] surprisingly involved male firefighters. Under regulation 2, a comparator must be under the "same type of contract" and doing "broadly similar work". It was held that even though part time firefighters did not do administrative work, their contracts were still broadly similar. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002[208] formulate the test for a comparator in a similar way, except that they purport (unlike the Directive appears to suggest) to cover "employees" and not the broader group of "workers".[209] In addition to a ban on less favourable treatment, without objective justification,[210] regulation 8 stipulates that if an employee has a succession of fixed term contracts lasting over 8 years, they are to be treated as having a permanent contract.[211]

The deaths of 21 immigrant cockle pickers at Morecambe Bay led to re-legislation to require employment agencies to be licensed, in the Gangmasters (Licensing) Act 2004.

The Agency Workers Regulations 2010 provide people protection against less favourable treatment when they arrive at work through an employment agency. Here the regulation is again more limited, as agency workers are explicitly entitled merely to equal treatment in "basic working conditions", which is defined as their pay and their working time. However, an agency worker may, unlike part timers or fixed term employees, appeal to a hypothetical comparator. One consequence in the UK, however, is that this legislation left uncertain the position of agency workers protection by the job security, child care and other rights for employees in ERA 1996.[212] While the dominant view is that an agency worker will always qualify as an employee when they work for a wage and are the more vulnerable party to the contract, the English Court of Appeal has issued conflicting judgments on whether an agency worker should have an unfair dismissal claim against the end-employer, the agency, or both or neither.[213] Reflecting their vulnerable position, the regulation of agency work goes beyond discrimination, to place a set of duties on employment agents' operations and conduct. Found in the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003[214] agencies are generally prohibited from charging fees to prospective workers. Various other duties include being honest in their job advertising, keeping all information on jobseekers confidential and complying with all employment laws. Originally agencies had to have licenses, and under the oversight of the Employment Agency Standards Inspectorate, risked losing their licenses if found to be acting in violation of the law. The Deregulation and Contracting Out Act 1994 removed the licensing requirement, but was partially reinstated for agencies in agricultural, shellfish and packing sectors through the Gangmasters (Licensing) Act 2004. In response to the 2004 Morecambe Bay cockling disaster this established another specific regulator, the Gangmasters Licensing Authority, to enforce employment law in those areas.

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