Employment law

1. Toni McAlindin 2011 www.tonimcalindin.co.uk Employment law

2. Background Employment law is relatively modern in relation to many other areas of law Most rights originated in the 70s Prior to that the 1800s saw legislation on the Factories Act to control excesses from the industrial revolution At that time also laws developed on trade unions but based on control of unions not protection of union or members as these were seen to be contrary to the maxim “an Englishman's home is his castle” ie his workplace was also his to do with as he wished However laws on trade union eventually provided limited protection where action was on the grounds of a trade dispute Not a right to strike but immunities in certain situations

3. Background continued Much of our present rules are based on some of the common law notions of the time particularly in relation to the law of contract Implied terms gradually built up based on concepts of agreement All of this was based on notions of master and servant a concept which stills underpins our present-day laws and causes many problems as it does not recognise the changing nature of the workplace ie it is less about control now This causes particular problems in relation to employment status

4. The origins of modern rights Until the 70s an employer could dispense with an employee's services almost at will only needing to comply with the contract which usually meant notice but no minimum laid down in law In the early 70 the then Conservative party under Ted Heath wanted to tighten its control of unions (three day week, power strikes etc) and proposed an Industrial Relations Act which would introduce further controls but in return would introduce the concept of Unfair Dismissal for the first time ie employees could not be dismissed without a good reason after a particular period of employment

5. Origins continued His legislation fell along with his Government due to the then significant union strength The incoming Labour Government under Harold Wilson introduced the famous beer and sandwiches at No. 10 The idea was that in return for wage restraint and moderation in relation to industrial action, a whole raft of employment rights would be provided eg minimum notice, guarantee pay, maternity rights, unfair dismissal, written particulars etc Note that although we were by then in the European Union (EEC) it had at that time little effect

6. European influence By the mid 70s there was the beginning of European influence on employment policies but note employment policy has always been influenced by the political party of the day Therefore the Tories have passed trade union laws, Labour often social policy but it is not that clear cut eg the 1997 Labour party did not repeal draconian trade union laws passed by Mrs Thatcher, the present day Tory party was very against the Equality Act introduced in October 2010 and the Agency regulations October 2011 but have left them in force The Coalition have tensions coming from different political perspectives – the Tories want deregulation, the Lib Dems want more family friendly laws

7. Europe continued Equally European laws have sometimes been introduced which the domestic government does not want The Europe we joined in 1972 had consisted of 6 countries, made up to 9 when we joined with Denmark and Southern Ireland At that time voting was unanimous, no directive could be introduced without the approval of all states, a great deal of horse trading went on but in the main France and Germany cooperated and greatly influenced outcomes On joining we inherited an obligation in relation to gender and equal pay but little else

8. Europe Much of what was proposed later was not liked by the UK and therefore vetoed affecting everyone By the time Mrs Thatcher came to power she inherited the Acquired Rights Directive agreed by the outgoing labour party under Callaghan but so disapproved that the resulting TUPE regulations in the UK were so badly drafted that we paid the penalty for a long time During her “reign” the Single European Act was adopted (she agreed to it!) This provided that social legislation on the grounds of health and safety could be adopted by qualified majority QMV – we had a good reputation for health and safety legislation However she was not so happy when the first directive to be adopted was the Pregnant Worker's directive – in her eyes not about health and safety

9. Europe Her successor John Major also fell foul of these rules when the Working time directive was adopted with the UK voting against it and eventually mounting a challenge in the ECJ arguing that it was not about health and safety and decided wrongly by QMV They lost – the Labour Party then having to implement an already late directive During John Major's time other EU countries wanted to make all (or most) social legislation subject to QMV The UK disagreed and were allowed to opt out of this extension in order to get the Maastricht Treaty (monetary union) through This was reversed by Tony Blair's labour party and we inherited directives on parental leave, part-time working

10. Europe continued It is probably safe to say that the UK's employment policy is now greatly influenced by the EU with estimates that up to 50% of our legislation originates from the EU This has major implications It introduces a further court into our existing system (ie Employment Tribunal, Employment Appeal Tribunal, Court of Appeal/Session, Supreme Court (formerly House of Lords) ie the European Court of Justice (not to be confused with the European Court of Human Rights which has a significant influence on employment rights)

11. European influence It is irrelevant which country takes the case to the ECJ, the result affects all and is binding trumping domestic law It is not necessary to take a case through all the lower courts, any can send a case to the ECJ Once decided the case will normally come back to the UK for the domestic courts to make a decision Recent examples include a decision in Heyday that the default retirement age of 65 is capable of being justified, the UK courts held that the Government could justify it In two cases on holidays the ECJ has decided that individuals continue to accrue holidays whilst off sick and if sick whilst on holiday can reschedule to another time – a later case appears to contradict this. Further cases on transfers are in the pipeline. The government is currently consulting on how to implement this in the UK These cases take some time to be resolved but can have major ramifications for employers

12. Public/private sector To further complicate matters, a long series of cases has decided that if European legislation is not properly implemented, those who work for “an emanation of the state” can make a claim directly on the basis of the relevant directive The first case to so decide was a British Gas case – at that time B Gas was regarded as an emanation of the state No such similar rules apply in the private sector who would have to sue the UK government for failure to implement or rely on infringement proceedings being brought by the EU against the UK However in reality if a decision is made against the State by someone working for an emanation of the state, the Government will extend protection to everyone The test case was Marshall on equal retirement age for men and women

13. Some of the major legal areas So history, political views, the influence of Europe have all helped mould our present day employment rights We are regarded as relatively unregulated compared to other countries but UK employers feel that the burden of employment legislation has increased greatly in recent years Even the smallest of employers must comply with a whole raft of legislation and a minimum floor of rights They can probably be divided into four main headings, individual, collective, discrimination and health and safety

14. Basic employment rights It is often forgotten that health and safety is about employment It is often dealt with by a specialist department particularly since it involves the criminal law, penalties, prosecutions, sometimes even imprisonment and now with corporate manslaughter much more risk Individual rights will include unfair dismissal, right to written particulars, minimum wage, minimum holidays, minimum sick pay, rules on pensions, rights when a business transfers, guarantee pay, redundancy pay and many more

15. Collective rights A complex body of law has grown around collective rights These include the right to join a union but no closed shop, no right to strike but protections if you do in certain situations, protections for the union if there is proper balloting, limits on picketing, information to employers etc Many rights apply to non-union representatives There are rights to time off, facilities, to be consulted over pensions, health and safety, redundancy, transfers However many of these rights are built on EU notions of engagement and it is clear that the UK often pays lip service to their implementation eg European Works Council directive, information and consultation Of particular concern is the difference in interpretation over redundancy consultation

16. Engagement • Nothing stands still • At the present time union membership is in decline • This is so even though the economic situation is leading to large scale redundancies, pay freezes, reduction in pensions and other far-reaching changes • A number of high profile strikes – British Airways • However little sign of major industrial unrest • Present Government threatening to toughen up union laws if there is unrest • Many employers using engagement strategies rather than via collective mechanisms • Use of employee voice, engagement, psychological contract (CIPD heavily involved in research on all of these areas) • Present Government working party on engagement to move this forward

17. Equality rights It is probably in the field of equality that we see the greatest impact of EU laws However in fairness, successive UK governments have introduced a raft of measures independent of the EU particularly in the field of flexible working The original legislation introduced in 1975 related to gender and to equal pay (the latter was introduced in 1970 but not implemented till 1975 in order to give employers time to get to grips with some of the pay issues eg married women being paid less)

18. Equality rights continued The next legislation related to race. The EU had no such legislation at that time (eventually introduced in 2003) but note that there had been UK legislation in the 60s ie race came before gender in the UK This was not popular legislation but was necessitated by social change in the UK eg an influx of African-Caribbean workers to the UK ie Enoch Powell's “river of blood “ speech Maternity legislation was part of the Harold Wilson 70s laws but less than that advocated by the eventual Pregnant Worker's legislation Along the way laws on gender reassignment, part-time working, parental leave, temporary working, parental leave were introduced

19. Equality Rights continued Of major significance was the law on disability introduced in 1996 The definition of disability is wide enough to cover a variety of illnesses which may not be permanent ie any physical or mental impairment will count as long as affects normal day to day activities and might last for a year or be recurrent or even past This then places a burden on employers to make a reasonable adjustment to the work or employment practices This has had significant impact on the management of absence and performance

20. Equality Rights continued In 2003 EU laws on religion and sexual orientation were introduced – these two clash see Ladele This has led to a reference to the European Court of Human Rights The Commission for Equality and Human Rights has intervened recognising the problems caused by clashing rights In 2006 laws on age discrimination were introduced As a result of these laws, linked to changes in demographics, the default retirement age of 65 was scrapped It is now discriminatory to make someone retire at any age unless there is justification which may be hard to prove However the ECJ appears to suggest that there may be justifications for retiring in certain professions

21. Equality continued • At present a new Equality Act came into force in October 2010 • It consolidates all existing discrimination legislation and makes it easier to find and understand • However it has also extended certain rights • It introduces the concept of direct, indirect discrimination, victimisation, harassment, associative and perceptive discrimination and third party harassment on the grounds of a “protected characteristic” • It was to have introduced multiple discrimination but this did not happen and a limited amount of positive discrimination

22. Human Rights Legislation • This is an entirely different body of legislation • It does not come from the European Union but from the Council of Europe • It was originally introduced after the second world war to deal with a number of atrocities • Although the UK signed up to the Convention it has only in recent years made it part of UK law • This has been highly controversial with many high profile cases re terrorists, prisoners slopping out etc • It is about public and not private bodies • A number of cases on religious discrimination have been referred to the courts recently • A large number of cases have recently been heard on the right to legal representation at disciplinary proceedings with the various UK courts coming to totally different conclusions. These cases have now been head by the Supreme Court which has held that in the main there is no breach of the Act

23. Political influence • Any political party has a major impact on the laws passed • To stereotype, the Tories will play to the market and try and avoid burdens on businesses • Labour will try and balance both hence not repealing trade union laws in 1997 • The modern Coalition is a new breed. There are signs of old Tories – Osborne – deregulation etc but new Tories with Lib dems in relation to improved maternity/paternity, flexible working etc

24. 2011 what are the issues? • The economic background has led to pay freezes, wage cuts, contract issues, changes to pensions, changes to redundancy packages • Fears of union retaliation have led to discussions on toughening up union laws. However there is no sign of major industrial unrest • The Coalition do not like the Equality Act and the Agency regulations but have left them be. They are talking deregulation but have come up with no concrete proposals. They want to tighten up tribunal rules, introduce a 2 year qualifying period for unfair dismissal and a fee for access. Surprisingly they are proposing a further raft of equality measures such as improved maternity/paternity and parental leave, flexible working for all and equal pay audits • Regardless of the political parties a number of high profile cases are on their way to the Supreme Court, the ECJ and the European Court of Human Rights

25. Influences on employment law Other than the EU, party politics, employment law is influenced by the market, by the economic situation (likely rise in retirement age, impacts on pension), by demographics (working mothers, single parents), by asylum and immigration, by the migration and immigration throughout the EU It is also influenced by trends eg notions of well being, stress, employee engagement It is also influenced by perceptions of different generations eg generations X, Y, Z, baby boomers, the little Princess syndrome

26. Conclusion Many people would like to tear it all up and start again Since the change of Government new initiatives are unlikely However a Coalition government has proved challenging A Tory party traditionally passes few laws which affect employers This Tory partner however is in favour of more family friendly rights It is also looking at deregulation eg Red Tape challenge, one in one out, moratorium on small businesses It will certainly seek to block further EU initiatives (may not be necessary – EU unable to agree changes on working time due to voting system - on the other hand – cooperated to agree new directive on agency working)

27. Conclusion If history is an indicator, our employment legislation is likely to remain a mixture of past common law, health and safety, negligence, European influence, influences from various political parties (rarely repealed with a change of power),by Human Rights issues, demographic, immigration, generational, economic issues Ie there is no overriding coherent strategy and employment laws often clash with other areas eg data protection gives individuals rights of privacy over health data but disability laws require that employers make reasonable adjustments which involve knowledge of the condition