FOUNDATIONS OF LABOUR LAW IN THE UK DAVID CABRELLI SENIOR LECTURER UNIVERSITY OF EDINBURGH

1. DAVID CABRELLI, SENIOR LECTURER IN COMMERCIAL LAW: • LABOUR LAW SEMINAR WITH FOCUS ON EQUALITY LAW AND COLLECTIVE RIGHTS • 31 MAY 2016 FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

2. Introduction • Industrial relations landscape and role of trade unions in the UK: Collective labour law • Equality Law • Equal pay law and mass litigation in Scotland • National minimum age law • Working time laws: holiday pay/annual leave and mass litigation in Scotland FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

3. Industrial Relations landscape Traditional/Historical Position: Single channel model of representation Absence of legal intervention Collective laissez-faire Government indirect support for collective bargaining - procedural FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

4. Modern Position: Neoliberalist approach to trade unions Decollectivisation and juridification: individual employment law Dual model of representation - effect of EU law Industrial Relations landscape FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

5. Industrial Relations landscape Deunionisation: 31 million people employed in UK. Membership 13.2 million members in 1979 to just over 7 million members in 2014/15, e.g. less than 25% of the UK workforce! Causes: 1. Economic Change from manufacturing to service-based economy Privatisation Deregulation of labour and other markets Vertical disintegration and flexibilisation 2. Rapid technological change 3. Political Demise of Trade Union Power: 1980s-present FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

6. Industrial Relations landscape 3. Political: Abolition of ‘closed shop’ Repeal of statutory trade union recognition legislation Strengthening of Trade Union members’ rights vis-à-vis trade unions Curtailments on industrial action FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

7. Industrial Relations landscape Modern Role of Trade Unions: Service function Representation function Regulatory function Government function Public administration function Emphasis is now on 1 & 2 FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

8. Industrial Relations landscape Who are the main Trade Unions: Unite the union Unison GMB PCS NASUWT NUT Public sector Private sector FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

9. Industrial Relations landscape Collective bargaining: Enterprise level National level Effect of collective agreements: Section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992 Express and implied incorporation Static/dynamic debate FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

10. Industrial Relations landscape Law of industrial action: No right to strike or engage in other industrial action Statutory immunities from breaches of common law economic torts Inducement to commit a breach of contract Causing loss by unlawful means Conspiracy Intimidation FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

11. Industrial Relations landscape Statutory immunities: Action must be in contemplation or furtherance of a trade dispute – this precludes ‘secondary action’ Highly detailed and technical pre-strike balloting and notice requirements Trade Union Act 2016 requirements Impact of Article 11 of ECHR Freedom of Association: Demir and Baykara v Turkey [2009] IRLR 766 (ECtHR), Enerji Yapi-Yol Sen, Application No 68959/01, judgment dated 21 April 2009 (ECtHR) Cases of Metrobus v UNITE [2009] IRLR 851, RMT v Serco [2011] IRLR 399 and RMT v UK [2014] IRLR 467 FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

12. Labour Law in the UK: Statute Employment Rights Act 1996 (“ERA”) Trade Union and Labour Relations (Consolidation) Act 1992 Equality Act 2010 (“EqA”) National Minimum Wage Act 1998 TUPE Regulations 2006 Working Time Regulations 1998 FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

13. EQUALITY LAW Nine protected characteristics: Sex Race Disability Age Sexual orientation Religion or philosophical belief Pregnancy/maternity Marital status/civil partnership Gender reassignment FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

14. EQUALITY LAW Eligibility to claim: Contract personally to do work – s. 83(2) of the EqA Contract worker – s. 41 EqA Prohibited conduct: Direct discrimination – s. 13 EqA Indirect discrimination – s. 19 EqA Harassment and sexual harassment – s. 26 EqA Victimisation – s. 27 EqA FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

15. EQUAL PAY LAW Persistent gender pay gap Equal pay for: ‘Like work’ ‘Work rated as equivalent’ ‘Work of equal value’ Comparator: Same employment or associated employment and same establishment or cross-establishment – s. 79 of the EqA Single source test – EU law FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

16. EQUAL PAY LAW Employer’s material factor defence: Night shift working Regional differentiations in pay Market forces Collective bargaining arrangements Direct of indirect discrimination and objective justification Enforcement: Employment tribunal (6 months) or breach of contract claim in the courts (5 years) FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

17. NATIONAL MINIMUM WAGE Different rates of pay: 25 years of age or over: £7.20 per hour 21-24: £6.70 ph 18-20: £5.30 ph 16-17: £3.87 ph Working time: Time work Salaried work Output work Unmeasured work FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

18. WORKING TIME REGULATIONS 1998 Limits and entitlements Limits: 48 hour working week – but, opt-out Rest break (20 minutes every 6 hours) and rest period (minimum of 11 hours’ rest every 24 hours) Entitlements: Minimum of 28 days annual leave Holiday pay FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

19. WORKING TIME REGULATIONS 1998 Series of cases on holiday pay: mass litigation Started with ‘rolled-up’ holiday pay – Robinson-Steele v PD Retail Services [2006] IRLR 386 Moved on to the relationship between sick leave and holiday pay: Continued accrual of annual leave and holiday pay during sick leave: Stringer v HM Revenue and Customs Comrs[2009] ICR 932 Conversion of annual leave/holiday pay into sick leave & pay and right to reschedule: Pereda v Madrid Movilidad SA [2009] IRLR 959 and ANGED v FASGA [2012] IRLR 779 Carry over of annual leave/holiday pay into subsequent leave years where worker is sick: Plumb v Duncan Print Group Ltd. [2015] IRLR 711– 18 months from end of the leave year in which the entitlement had accrued, whereupon it will be lost Calculation of holiday pay: British Airways plc v Williams [2012] ICR 847 – ‘normal remuneration’ and ‘intrinsically linked to the worker’s tasks in terms of his/her contract of employment’ Lock v British Gas Trading Ltd. [2014] ICR 813 Bear Scotland Ltd v Fulton [2015] IRLR 15 – non-guaranteed overtime backdated for how long? See 2 year limit in section 23(4A) and (4B) of the ERA Lock v British Gas Trading Ltd. [2015] IRLR 438 Patterson v Castlereagh Borough Council [2015] IRLR 721 FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH

20. DAVID CABRELLI, SENIOR LECTURER IN COMMERCIAL LAW: • LABOUR LAW SEMINAR WITH FOCUS ON EQUALITY LAW AND COLLECTIVE RIGHTS • 31 MAY 2016 FOUNDATIONS OF LABOUR LAW IN THE UKDAVID CABRELLISENIOR LECTURERUNIVERSITY OF EDINBURGH