Employment Law - Social Legislation - Lecture Slides, Slides of Introduction to Sociology

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Employment law

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

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

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

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 Docsity.com

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

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)

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

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

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

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

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

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

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