Employment lawEmployment law

Toni McAlindinToni McAlindin

20112011

www.tonimcalindin.co.ukwww.tonimcalindin.co.uk

BackgroundBackground

Employment law is relatively modern in relation to many Employment law is relatively modern in relation to many other areas of lawother areas of law

Most rights originated in the 70sMost rights originated in the 70s Prior to that the 1800s saw legislation on the Factories Act to Prior to that the 1800s saw legislation on the Factories Act to

control excesses from the industrial revolutioncontrol excesses from the industrial revolution At that time also laws developed on trade unions but based At that time also laws developed on trade unions but based

on control of unions not protection of union or members as on control of unions not protection of union or members as these were seen to be contrary to the maxim “an these were seen to be contrary to the maxim “an Englishman's home is his castle” ie his workplace was also Englishman's home is his castle” ie his workplace was also his to do with as he wishedhis to do with as he wished

However laws on trade union eventually provided limited However laws on trade union eventually provided limited protection where action was on the grounds of a trade protection where action was on the grounds of a trade disputedispute

Not a right to strike but immunities in certain situationsNot a right to strike but immunities in certain situations

Background continuedBackground continued

Much of our present rules are based on some Much of our present rules are based on some of the common law notions of the time of the common law notions of the time particularly in relation to the law of contractparticularly in relation to the law of contract

Implied terms gradually built up based on Implied terms gradually built up based on concepts of agreementconcepts of agreement

All of this was based on notions of master and All of this was based on notions of master and servant a concept which stills underpins our servant a concept which stills underpins our present-day laws and causes many problems present-day laws and causes many problems as it does not recognise the changing nature of as it does not recognise the changing nature of the workplace ie it is less about control nowthe workplace ie it is less about control now

This causes particular problems in relation to This causes particular problems in relation to employment statusemployment status

The origins of modern The origins of modern rightsrights

Until the 70s an employer could dispense with an Until the 70s an employer could dispense with an employee's services almost at will only needing employee's services almost at will only needing to comply with the contract which usually meant to comply with the contract which usually meant notice but no minimum laid down in lawnotice but no minimum laid down in law

In the early 70 the then Conservative party In the early 70 the then Conservative party under Ted Heath wanted to tighten its control of under Ted Heath wanted to tighten its control of unions (three day week, power strikes etc) and unions (three day week, power strikes etc) and proposed an Industrial Relations Act which would proposed an Industrial Relations Act which would introduce further controls but in return would introduce further controls but in return would introduce the concept of Unfair Dismissal for the introduce the concept of Unfair Dismissal for the first time ie employees could not be dismissed first time ie employees could not be dismissed without a good reason after a particular period of without a good reason after a particular period of employmentemployment

Origins continuedOrigins continued

His legislation fell along with his Government due to His legislation fell along with his Government due to the then significant union strengththe then significant union strength

The incoming Labour Government under Harold The incoming Labour Government under Harold Wilson introduced the famous beer and sandwiches Wilson introduced the famous beer and sandwiches at No. 10at No. 10

The idea was that in return for wage restraint and The idea was that in return for wage restraint and moderation in relation to industrial action, a whole moderation in relation to industrial action, a whole raft of employment rights would be provided eg raft of employment rights would be provided eg minimum notice, guarantee pay, maternity rights, minimum notice, guarantee pay, maternity rights, unfair dismissal, written particulars etcunfair dismissal, written particulars etc

Note that although we were by then in the European Note that although we were by then in the European Union (EEC) it had at that time little effectUnion (EEC) it had at that time little effect

European influenceEuropean influence

By the mid 70s there was the beginning of European By the mid 70s there was the beginning of European influence on employment policies but note employment influence on employment policies but note employment policy has always been influenced by the political party policy has always been influenced by the political party of the dayof the day

Therefore the Tories have passed trade union laws, Therefore the Tories have passed trade union laws, Labour often social policy but it is not that clear cut eg Labour often social policy but it is not that clear cut eg the 1997 Labour party did not repeal draconian trade the 1997 Labour party did not repeal draconian trade union laws passed by Mrs Thatcher, the present day union laws passed by Mrs Thatcher, the present day Tory party was very against the Equality Act introduced Tory party was very against the Equality Act introduced in October 2010 and the Agency regulations October in October 2010 and the Agency regulations October 2011 but have left them in force2011 but have left them in force

The Coalition have tensions coming from different The Coalition have tensions coming from different political perspectives – the Tories want deregulation, the political perspectives – the Tories want deregulation, the Lib Dems want more family friendly lawsLib Dems want more family friendly laws

Europe continuedEurope continued

Equally European laws have sometimes been Equally European laws have sometimes been introduced which the domestic government does introduced which the domestic government does not wantnot want

The Europe we joined in 1972 had consisted of 6 The Europe we joined in 1972 had consisted of 6 countries, made up to 9 when we joined with countries, made up to 9 when we joined with Denmark and Southern IrelandDenmark and Southern Ireland

At that time voting was unanimous, no directive At that time voting was unanimous, no directive could be introduced without the approval of all could be introduced without the approval of all states, a great deal of horse trading went on but states, a great deal of horse trading went on but in the main France and Germany cooperated and in the main France and Germany cooperated and greatly influenced outcomesgreatly influenced outcomes

On joining we inherited an obligation in relation to On joining we inherited an obligation in relation to gender and equal pay but little elsegender and equal pay but little else

EuropeEurope

Much of what was proposed later was not liked by the UK Much of what was proposed later was not liked by the UK and therefore vetoed affecting everyoneand therefore vetoed affecting everyone

By the time Mrs Thatcher came to power she inherited the By the time Mrs Thatcher came to power she inherited the Acquired Rights Directive agreed by the outgoing labour Acquired Rights Directive agreed by the outgoing labour party under Callaghan but so disapproved that the resulting party under Callaghan but so disapproved that the resulting TUPE regulations in the UK were so badly drafted that we TUPE regulations in the UK were so badly drafted that we paid the penalty for a long timepaid the penalty for a long time

During her “reign” the Single European Act was adopted During her “reign” the Single European Act was adopted (she agreed to it!)(she agreed to it!)

This provided that social legislation on the grounds of health This provided that social legislation on the grounds of health and safety could be adopted by qualified majority QMV – we and safety could be adopted by qualified majority QMV – we had a good reputation for health and safety legislationhad a good reputation for health and safety legislation

However she was not so happy when the first directive to However she was not so happy when the first directive to be adopted was the Pregnant Worker's directive – in her be adopted was the Pregnant Worker's directive – in her eyes not about health and safetyeyes not about health and safety

EuropeEurope

Her successor John Major also fell foul of these rules Her successor John Major also fell foul of these rules when the Working time directive was adopted with the when the Working time directive was adopted with the UK voting against it and eventually mounting a UK voting against it and eventually mounting a challenge in the ECJ arguing that it was not about health challenge in the ECJ arguing that it was not about health and safety and decided wrongly by QMVand safety and decided wrongly by QMV

They lost – the Labour Party then having to implement They lost – the Labour Party then having to implement an already late directivean already late directive

During John Major's time other EU countries wanted to During John Major's time other EU countries wanted to make all (or most) social legislation subject to QMVmake all (or most) social legislation subject to QMV

The UK disagreed and were allowed to opt out of this The UK disagreed and were allowed to opt out of this extension in order to get the Maastricht Treaty extension in order to get the Maastricht Treaty (monetary union) through(monetary union) through

This was reversed by Tony Blair's labour party and we This was reversed by Tony Blair's labour party and we inherited directives on parental leave, part-time workinginherited directives on parental leave, part-time working

Europe continuedEurope continued

It is probably safe to say that the UK's It is probably safe to say that the UK's employment policy is now greatly influenced by employment policy is now greatly influenced by the EU with estimates that up to 50% of our the EU with estimates that up to 50% of our legislation originates from the EUlegislation originates from the EU

This has major implicationsThis has major implications It introduces a further court into our existing It introduces a further court into our existing

system (ie Employment Tribunal, Employment system (ie Employment Tribunal, Employment Appeal Tribunal, Court of Appeal/Session, Appeal Tribunal, Court of Appeal/Session, Supreme Court (formerly House of Lords) ie the Supreme Court (formerly House of Lords) ie the European Court of Justice (not to be confused European Court of Justice (not to be confused with the European Court of Human Rights which with the European Court of Human Rights which has a significant influence on employment has a significant influence on employment rights) rights)

European influenceEuropean influence

It is irrelevant which country takes the case to the ECJ, the It is irrelevant which country takes the case to the ECJ, the result affects all and is binding trumping domestic lawresult affects all and is binding trumping domestic law

It is not necessary to take a case through all the lower courts, It is not necessary to take a case through all the lower courts, any can send a case to the ECJany can send a case to the ECJ

Once decided the case will normally come back to the UK for Once decided the case will normally come back to the UK for the domestic courts to make a decisionthe domestic courts to make a decision

Recent examples include a decision in Heyday that the default Recent examples include a decision in Heyday that the default retirement age of 65 is capable of being justified, the UK courts retirement age of 65 is capable of being justified, the UK courts held that the Government could justify itheld that the Government could justify it

In two cases on holidays the ECJ has decided that individuals In two cases on holidays the ECJ has decided that individuals continue to accrue holidays whilst off sick and if sick whilst on continue to accrue holidays whilst off sick and if sick whilst on holiday can reschedule to another time – a later case appears holiday can reschedule to another time – a later case appears to contradict this. Further cases on transfers are in the to contradict this. Further cases on transfers are in the pipeline. The government is currently consulting on how to pipeline. The government is currently consulting on how to implement this in the UKimplement this in the UK

These cases take some time to be resolved but can have major These cases take some time to be resolved but can have major ramifications for employersramifications for employers

Public/private sectorPublic/private sector

To further complicate matters, a long series of cases has To further complicate matters, a long series of cases has decided that if European legislation is not properly decided that if European legislation is not properly implemented, those who work for “an emanation of the state” implemented, those who work for “an emanation of the state” can make a claim directly on the basis of the relevant can make a claim directly on the basis of the relevant directivedirective

The first case to so decide was a British Gas case – at that The first case to so decide was a British Gas case – at that time B Gas was regarded as an emanation of the statetime B Gas was regarded as an emanation of the state

No such similar rules apply in the private sector who would No such similar rules apply in the private sector who would have to sue the UK government for failure to implement or have to sue the UK government for failure to implement or rely on infringement proceedings being brought by the EU rely on infringement proceedings being brought by the EU against the UKagainst the UK

However in reality if a decision is made against the State by However in reality if a decision is made against the State by someone working for an emanation of the state, the someone working for an emanation of the state, the Government will extend protection to everyoneGovernment will extend protection to everyone

The test case was Marshall on equal retirement age for men The test case was Marshall on equal retirement age for men and womenand women

Some of the major legal Some of the major legal areasareas

So history, political views, the influence of So history, political views, the influence of Europe have all helped Europe have all helped mouldmould our present day our present day employment rightsemployment rights

We are regarded as relatively unregulated We are regarded as relatively unregulated compared to other countries but UK employers compared to other countries but UK employers feel that the burden of employment legislation feel that the burden of employment legislation has increased greatly in recent yearshas increased greatly in recent years

Even the smallest of employers must comply Even the smallest of employers must comply with a whole raft of legislation and a minimum with a whole raft of legislation and a minimum floor of rightsfloor of rights

They can probably be divided into four main They can probably be divided into four main headings, individual, collective, discrimination headings, individual, collective, discrimination and health and safetyand health and safety

Basic employment rightsBasic employment rights

It is often forgotten that health and safety is It is often forgotten that health and safety is about employmentabout employment

It is often dealt with by a specialist department It is often dealt with by a specialist department particularly since it involves the criminal law, particularly since it involves the criminal law, penalties, prosecutions, sometimes even penalties, prosecutions, sometimes even imprisonment and now with corporate imprisonment and now with corporate manslaughter much more riskmanslaughter much more risk

Individual rights will include unfair dismissal, Individual rights will include unfair dismissal, right to written particulars, minimum wage, right to written particulars, minimum wage, minimum holidays, minimum sick pay, rules on minimum holidays, minimum sick pay, rules on pensions, rights when a business transfers, pensions, rights when a business transfers, guarantee pay, redundancy pay and many moreguarantee pay, redundancy pay and many more

Collective rightsCollective rights

A complex body of law has grown around collective rightsA complex body of law has grown around collective rights These include the right to join a union but no closed shop, These include the right to join a union but no closed shop,

no right to strike but protections if you do in certain no right to strike but protections if you do in certain situations, protections for the union if there is proper situations, protections for the union if there is proper balloting, limits on picketing, information to employers balloting, limits on picketing, information to employers etcetc

Many rights apply to non-union representativesMany rights apply to non-union representatives There are rights to time off, facilities, to be consulted There are rights to time off, facilities, to be consulted

over pensions, health and safety, redundancy, transfersover pensions, health and safety, redundancy, transfers However many of these rights are built on EU notions of However many of these rights are built on EU notions of

engagement and it is clear that the UK often pays lip engagement and it is clear that the UK often pays lip service to their implementation eg European Works service to their implementation eg European Works Council directive, information and consultationCouncil directive, information and consultation

Of particular concern is the difference in interpretation Of particular concern is the difference in interpretation over redundancy consultationover redundancy consultation

EngagementEngagement

Nothing stands stillNothing stands stillAt the present time union membership is in declineAt the present time union membership is in declineThis is so even though the economic situation is leading to This is so even though the economic situation is leading to

large scale redundancies, pay freezes, reduction in large scale redundancies, pay freezes, reduction in pensions and other far-reaching changespensions and other far-reaching changes

A number of high profile strikes – British AirwaysA number of high profile strikes – British AirwaysHowever little sign of major industrial unrestHowever little sign of major industrial unrestPresent Government threatening to toughen up union laws if Present Government threatening to toughen up union laws if

there is unrestthere is unrestMany employers using engagement strategies rather than via Many employers using engagement strategies rather than via

collective mechanismscollective mechanismsUse of employee voice, engagement, psychological contract Use of employee voice, engagement, psychological contract

(CIPD heavily involved in research on all of these areas)(CIPD heavily involved in research on all of these areas)Present Government working party on engagement to move Present Government working party on engagement to move

this forwardthis forward

Equality rightsEquality rights

It is probably in the field of equality that we It is probably in the field of equality that we see the greatest impact of EU lawssee the greatest impact of EU laws

However in fairness, successive UK However in fairness, successive UK governments have introduced a raft of governments have introduced a raft of measures independent of the EU particularly in measures independent of the EU particularly in the field of flexible workingthe field of flexible working

The original legislation introduced in 1975 The original legislation introduced in 1975 related to gender and to equal pay (the latter related to gender and to equal pay (the latter was introduced in 1970 but not implemented was introduced in 1970 but not implemented till 1975 in order to give employers time to get till 1975 in order to give employers time to get to grips with some of the pay issues eg to grips with some of the pay issues eg married women being paid less)married women being paid less)

Equality rights continuedEquality rights continued

The next legislation related to race. The EU had The next legislation related to race. The EU had no such legislation at that time (eventually no such legislation at that time (eventually introduced in 2003) but note that there had been introduced in 2003) but note that there had been UK legislation in the 60s ie race came before UK legislation in the 60s ie race came before gender in the UKgender in the UK

This was not popular legislation but was This was not popular legislation but was necessitated by social change in the UK eg an necessitated by social change in the UK eg an influx of African-Caribbean workers to the UK ie influx of African-Caribbean workers to the UK ie Enoch Powell's “river of blood “ speechEnoch Powell's “river of blood “ speech

Maternity legislation was part of the Harold Wilson Maternity legislation was part of the Harold Wilson 70s laws but less than that advocated by the 70s laws but less than that advocated by the eventual Pregnant Worker's legislationeventual Pregnant Worker's legislation

Along the way laws on gender reassignment, part-Along the way laws on gender reassignment, part-time working, parental leave, temporary working, time working, parental leave, temporary working, parental leave were introducedparental leave were introduced

Equality Rights continuedEquality Rights continued

Of major significance was the law on disability Of major significance was the law on disability introduced in 1996introduced in 1996

The definition of disability is wide enough to The definition of disability is wide enough to cover a variety of illnesses which may not be cover a variety of illnesses which may not be permanent ie any physical or mental impairment permanent ie any physical or mental impairment will count as long as affects normal day to day will count as long as affects normal day to day activities and might last for a year or be activities and might last for a year or be recurrent or even pastrecurrent or even past

This then places a burden on employers to This then places a burden on employers to make a reasonable adjustment to the work or make a reasonable adjustment to the work or employment practicesemployment practices

This has had significant impact on the This has had significant impact on the management of absence and performancemanagement of absence and performance

Equality Rights continuedEquality Rights continued

In 2003 EU laws on religion and sexual orientation were In 2003 EU laws on religion and sexual orientation were introduced – these two clash see Ladeleintroduced – these two clash see Ladele

This has led to a reference to the European Court of Human This has led to a reference to the European Court of Human RightsRights

The Commission for Equality and Human Rights has The Commission for Equality and Human Rights has intervened recognising the problems caused by clashing intervened recognising the problems caused by clashing rightsrights

In 2006 laws on age discrimination were introducedIn 2006 laws on age discrimination were introduced As a result of these laws, linked to changes in demographics, As a result of these laws, linked to changes in demographics,

the default retirement age of 65 was scrappedthe default retirement age of 65 was scrapped It is now discriminatory to make someone retire at any age It is now discriminatory to make someone retire at any age

unless there is justification which may be hard to proveunless there is justification which may be hard to prove However the ECJ appears to suggest that there may be However the ECJ appears to suggest that there may be

justifications for retiring in certain professionsjustifications for retiring in certain professions

Equality continuedEquality continued

At present a new Equality Act came into force in October At present a new Equality Act came into force in October 20102010

It consolidates all existing discrimination legislation and It consolidates all existing discrimination legislation and makes it easier to find and understandmakes it easier to find and understand

However it has also extended certain rightsHowever it has also extended certain rights It introduces the concept of direct, indirect It introduces the concept of direct, indirect

discrimination, victimisation, harassment, associative discrimination, victimisation, harassment, associative and perceptive discrimination and third party harassment and perceptive discrimination and third party harassment on the grounds of a “protected characteristic” on the grounds of a “protected characteristic”

It was to have introduced multiple discrimination but this It was to have introduced multiple discrimination but this did not happen and a limited amount of positive did not happen and a limited amount of positive discriminationdiscrimination

Human Rights LegislationHuman Rights Legislation

This is an entirely different body of legislationThis is an entirely different body of legislationIt does not come from the European Union but from the Council of It does not come from the European Union but from the Council of

EuropeEuropeIt was originally introduced after the second world war to deal with a It was originally introduced after the second world war to deal with a

number of atrocitiesnumber of atrocitiesAlthough the UK signed up to the Convention it has only in recent Although the UK signed up to the Convention it has only in recent

years made it part of UK lawyears made it part of UK lawThis has been highly controversial with many high profile cases re This has been highly controversial with many high profile cases re

terrorists, prisoners slopping out etcterrorists, prisoners slopping out etcIt is about public and not private bodiesIt is about public and not private bodiesA number of cases on religious discrimination have been referred to A number of cases on religious discrimination have been referred to

the courts recentlythe courts recentlyA large number of cases have recently been heard on the right to A large number of cases have recently been heard on the right to

legal representation at disciplinary proceedings with the various legal representation at disciplinary proceedings with the various UK courts coming to totally different conclusions. These cases UK courts coming to totally different conclusions. These cases have now been head by the Supreme Court which has held that in have now been head by the Supreme Court which has held that in the main there is no breach of the Actthe main there is no breach of the Act

Political influencePolitical influence

Any political party has a major impact on the Any political party has a major impact on the laws passed laws passed

To stereotype, the Tories will play to the market To stereotype, the Tories will play to the market and try and avoid burdens on businessesand try and avoid burdens on businesses

Labour will try and balance both hence not Labour will try and balance both hence not repealing trade union laws in 1997repealing trade union laws in 1997

The modern Coalition is a new breed. There are The modern Coalition is a new breed. There are signs of old Tories – Osborne – deregulation signs of old Tories – Osborne – deregulation etc but new Tories with Lib dems in relation to etc but new Tories with Lib dems in relation to improved maternity/paternity, flexible working improved maternity/paternity, flexible working etcetc

2011 what are the issues?2011 what are the issues?

1.1. The economic background has led to pay freezes, wage The economic background has led to pay freezes, wage cuts, contract issues, changes to pensions, changes to cuts, contract issues, changes to pensions, changes to redundancy packagesredundancy packages

2.2. Fears of union retaliation have led to discussions on Fears of union retaliation have led to discussions on toughening up union laws. However there is no sign of toughening up union laws. However there is no sign of major industrial unrestmajor industrial unrest

3.3. The Coalition do not like the Equality Act and the Agency The Coalition do not like the Equality Act and the Agency regulations but have left them be. They are talking regulations but have left them be. They are talking deregulation but have come up with no concrete proposals. deregulation but have come up with no concrete proposals. They want to tighten up tribunal rules, introduce a 2 year They want to tighten up tribunal rules, introduce a 2 year qualifying period for unfair dismissal and a fee for access. qualifying period for unfair dismissal and a fee for access. Surprisingly they are proposing a further raft of equality Surprisingly they are proposing a further raft of equality measures such as improved maternity/paternity and measures such as improved maternity/paternity and parental leave, flexible working for all and equal pay auditsparental leave, flexible working for all and equal pay audits

4.4. Regardless of the political parties a number of high profile Regardless of the political parties a number of high profile cases are on their way to the Supreme Court, the ECJ and cases are on their way to the Supreme Court, the ECJ and the European Court of Human Rightsthe European Court of Human Rights

Influences on employment Influences on employment lawlaw

Other than the EU, party politics, employment Other than the EU, party politics, employment law is influenced by the market, by the economic law is influenced by the market, by the economic situation (likely rise in retirement age, impacts on situation (likely rise in retirement age, impacts on pension), by demographics (working mothers, pension), by demographics (working mothers, single parents), by asylum and immigration, by single parents), by asylum and immigration, by the migration and immigration throughout the EUthe migration and immigration throughout the EU

It is also influenced by trends eg notions of well It is also influenced by trends eg notions of well being, stress, employee engagementbeing, stress, employee engagement

It is also influenced by perceptions of different It is also influenced by perceptions of different generations eg generations X, Y, Z, baby generations eg generations X, Y, Z, baby boomers, the little Princess syndromeboomers, the little Princess syndrome

ConclusionConclusion

Many people would like to tear it all up and start againMany people would like to tear it all up and start again Since the change of Government new initiatives are Since the change of Government new initiatives are

unlikelyunlikely However a Coalition government has proved challengingHowever a Coalition government has proved challenging A Tory party traditionally passes few laws which affect A Tory party traditionally passes few laws which affect

employersemployers This Tory partner however is in favour of more family This Tory partner however is in favour of more family

friendly rightsfriendly rights It is also looking at deregulation eg Red Tape challenge, It is also looking at deregulation eg Red Tape challenge,

one in one out, moratorium on small businessesone in one out, moratorium on small businesses It will certainly seek to block further EU initiatives (may It will certainly seek to block further EU initiatives (may

not be necessary – EU unable to agree changes on not be necessary – EU unable to agree changes on working time due to voting system - on the other hand – working time due to voting system - on the other hand – cooperated to agree new directive on agency working)cooperated to agree new directive on agency working)

ConclusionConclusion

If history is an indicator, our employment If history is an indicator, our employment legislation is likely to remain a mixture of past legislation is likely to remain a mixture of past common law, health and safety, negligence, common law, health and safety, negligence, European influence, influences from various European influence, influences from various political parties (rarely repealed with a change of political parties (rarely repealed with a change of power),by Human Rights issues, demographic, power),by Human Rights issues, demographic, immigration, generational, economic issuesimmigration, generational, economic issues

Ie there is no overriding coherent strategy and Ie there is no overriding coherent strategy and employment laws often clash with other areas eg employment laws often clash with other areas eg data protection gives individuals rights of privacy data protection gives individuals rights of privacy over health data but disability laws require that over health data but disability laws require that employers make reasonable adjustments which employers make reasonable adjustments which involve knowledge of the conditioninvolve knowledge of the condition