Labor Law in United Kingdom

The labor law in United Kingdom is very flexible; there is small limitation by the law for employers.
Contract of work
All employees are entitled to a contract of employment that forms the basis of the employment relationship. The
following details must be included in the written statement:
employers and employees name
job title or job description
date the employment began, place of work and address of employer
amount of pay and interval between payments
hours of work, holiday pay and sick pay entitlements
pension arrangements
notice period
grievance and appeal arrangements
disciplinary rules or dismissal procedures
Over the years, employees have become entitled to a wide range of statutory rights, derived from parliamentary acts
and regulations that affect the employment relationship. In general they cannot be waived and include the right:
Working hours
The employer contract will state the number of hours he is expected to work and how much holiday he is entitled to.
There are regulations that set out the maximum number of hours a person should work each week. In general young
people between school leaving age, and 18 years old should work a maximum of 40 hours a week, or 8 hours a day.
For workers of 18 or over the figure is 48 hours a week.
Minimum wages
The minimum wages in the United Kingdom is since 1. 10. 2008 the amount 993.20 pounds sterling (1 186 EUR) per
month.
Ending employment
The contract can be terminated in various ways:
by expiry of the agreed term (temporary contract)
notice (dismissal) by employer or employee
termination by mutual agreement
setting aside of the contract by the cantonal court
death of the employee
Holiday
All workers have a statutory right to at least four weeks paid annual leave (20 days paid holiday if his work five days a
week).
Bc. Petr Gola


United Kingdom labour law
From Wikipedia, the free encyclopedia


In the UK in 2012, of the total working population 29.6 million people are employed, there is 8.1% unemployment, and
73.4% without union membership. The average income is 25,498, and the average working week is 41.4 hours.
[1]

United Kingdom labour law involves the legal relationship between workers, employers and trade
unions.
[2]
People at work in the UK benefit from a minimum charter of employment rights.
[3]
This
includes the right to a minimum wage of 6.31 for over 21-year-olds under the National Minimum
Wage Act 1998, 28 paid holidays and no longer than 48 working hours unless one consents under
the Working Time Regulations 1998, the right to leave for child care, and the right to request flexible
working patterns under the Employment Rights Act 1996. TheEmployment Rights Act 1996 adds
that, unless the employee repudiates the relationship, before a dismissal every employer must give
reasonable notice after one month of work, and after two years employers must provide a sufficiently
fair reason for dismissal and redundancy payments for employees made redundant. If a company is
taken over the Transfer of Undertakings (Protection of Employment) Regulations 2006state that
employees' terms cannot be worsened, including to the point of dismissal, without a good economic,
technical or organisational reason.
Beyond individual rights, workers have the ability to participate in decisions about how their
enterprise is managed through a growing set of statutory rights and the traditional models
of collective bargaining. Gradually, the number of "John Lewis" style participatory institutions at work
have grown, often mirroring European standards. Workers have the right to codetermine how
their occupational pensions are managed under the Pensions Act 2004, and how health and safety
policies in the workplace are formulated under the Health and Safety at Work Act 1974. In larger
firms with over 50 staff, workers must be informed and consulted about major economic
developments, particularly about business difficulties. This happens through a steadily increasing
number of works councils, which usually must be requested by staff. The UK has not yet
implemented earlier proposals, or followed the majority practice in the EU to require that employees
have a vote for members' of their company's board of directors. Collective bargaining between trade
unions and company management remains the UK's primary participatory model. Collective
agreements are backed up by the threat of a strike which is lawful if "in contemplation or furtherance
of a trade dispute". Since the early 1980s, industrial action has steadily decreased, as has
membership of trade unions. The Trade Union and Labour Relations (Consolidation) Act 1992 sets
out rules for the constitution of trade unions, members' rights, the conditions to be fulfilled before
strike action may be taken and the legal status of collective agreements.
Contents
[hide]
1 History
2 Employment rights and duties
o 2.1 Scope of protection
o 2.2 Contract of employment
o 2.3 Health and safety
o 2.4 Wage regulation
o 2.5 Working time and child care
o 2.6 Occupational pensions
o 2.7 Income tax and insurance
o 2.8 Civil liberties at work
3 Workplace participation
o 3.1 Trade unions
o 3.2 Participation
o 3.3 Information and consultation
o 3.4 Collective bargaining
o 3.5 Collective action
4 Equality
o 4.1 Discrimination
o 4.2 Justification
o 4.3 Disability and positive action
o 4.4 Atypical work
o 4.5 Free movement and immigration
5 Job security
o 5.1 Wrongful dismissal
o 5.2 Unfair dismissal
o 5.3 Redundancy
o 5.4 Business transfers and insolvency
o 5.5 Unemployment
6 Enforcement and tribunals
7 International labour law
8 See also
9 Notes
10 References
11 External links
History[edit]
Main articles: History of labour law in the United Kingdom and History of English land law


Wat Tyler, leader of the Peasants' Revolt is killed in front of King Richard II.
"It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage
in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can
combine much more easily; and the law, besides, authorises, or at least does not prohibit their combinations, while it
prohibits those of the workmen. We have no acts of parliament against combining to lower the price of work; but
many against combining to raise it. In all such disputes the masters can hold out much longer. A landlord, a farmer, a
master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two
upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a
month, and scarce any a year without employment. In the long run the workman may be as necessary to his master
as his master is to him; but the necessity is not so immediate."
A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book I, ch 8
Labour law in its modern form is primarily a creation of the last three decades of the 20th century.
However, as a system of regulating the employment relationship, labour law has existed since
people worked. In feudal England, the first significant labour laws followed theBlack Death. Given
the shortage of workers and consequent price rises the Ordinance of Labourers 1349and the Statute
of Labourers 1351attempted to suppress sources of wage inflation by banning workers organisation,
creating offences for any able-bodied person that did not work, and fixing wages at pre-plague
levels. Ultimately this led to the Peasants' Revolt of 1381, which was in turn suppressed and
followed up with the Statute of Cambridge 1388, which banned workers from moving around the
country. Yet conditions were improving as serfdom was breaking down. One sign was the beginning
of the more enlightened Truck Acts, dating from 1464, that required that workers be paid in cash and
not kind. In 1772 slavery was declared to be illegal in R v Knowles, ex parte Somersett,
[4]
and the
subsequent Slave Trade Act 1807 and Slavery Abolition Act 1833 enforced prohibition throughout
the British Empire.
[5]
The turn into the 19th century coincided with the start of the massive boom in
production. Gradually people's relationship to their employers moved from one of status - formal
subordination and deference - to contract whereby people were formally free to choose their
work.
[6]
However, freedom of contract did not, as the economist Adam Smith observed, change a
worker's factual dependency on employers.


Men leaving the pit, before the start of the Great War. The average life expectancy of a Liverpool mineworker was 30
years in 1900.
As its height, the businesses and corporations of Britain's industrial revolutionorganised half the
world's production across a third of the globe's surface and a quarter of its population. Joint Stock
Companies, building railways, canals and factories, manufacturing household goods, connecting
telegraphs, distributing coal, formed the backbone of the laissez faire model of commerce.
Industrialisation also meant greater urbanisation, and inevitably miserable conditions in the factories.
TheFactory Acts dating from 1803 required minimum standards on hours and conditions of working
children. But people were also attempting to organise more formally. Initially, trade unions were
suppressed, particularly following the French Revolutionof 1789 under the Combination Act 1799.
The Master and Servant Act 1823 and subsequent updates stipulated that all workmen were subject
to criminal penalties for disobedience, and calling for strikes was punished as an
"aggravated" breach of contract. But then the position was slowly liberalised and through the Trade
Union Act 1871 and the Conspiracy, and Protection of Property Act 1875 trade unions were
legitimised.
[7]
Toward the turn of the 20th century, in Mogul Steamship Co Ltd v McGregor, Gow &
Co,
[8]
the House of Lords emphasised that businesses should be free to organise into trade
associations in the same way that employees organised into unions. However, with growing unrest
and industrial action the House of Lords changed its mind. At the turn of the 20th century he
notorious judgment ofTaff Vale Railway Co v Amalgamated Society of Railway Servants,
[9]
made
unions liable in economic tort for the costs ofindustrial action. Although a combination of employers
in a company could dismiss employees without notice, a combination of employees in a trade union
were punished for withdrawing their labour. The case led trade unions to form a Labour
Representation Committee, which then became the UK Labour Party, to lobby for the reversal of the
law. After the United Kingdom general election, 1906 a coalition government composed of the
new Labour Party and the Liberals, among whomDavid Lloyd George and Winston Churchill were
rising stars, quickly passed the Trade Disputes Act 1906. This laid down the essential principle of
collective labour law that any strike "in contemplation or furtherance of a trade dispute" is immune
from civil law sanctions. Accompanying this, the government embarked on widespread social reform.
The Old Age Pensions Act 1908 provided pensions for retirees. The Trade Boards Act 1909 created
industrial panels to fix minimum wages. And the National Insurance Act 1911 levied a fee to insure
people got benefits in the event of unemployment.


The Versailles Treaty that established the International Labour Organisation in 1919.
During World War One the brutality of the Western Front demanded the participation of every
available person and resource. As women took over traditional "men's jobs"
the Suffragette movement gained momentum. Before the war's conclusion, the Representation of
the People Act 1918 gave universal suffrage to men over age 21 and women over 28. A new
beginning was promised by the victors to their people. The Versailles Treaty created
the International Labour Organisationto draw up common standards between countries, for as it
said, "peace can be established only if it is based on social justice", and echoed the US Clayton Act
1914in pronouncing that "labour should not be regarded merely as a commodity or an article of
commerce".
[10]
But the international system remained disjointed as theUnited States
Congress withheld its approval to join the League of Nations. Within the UK the postwar settlement
was to make a home fit for heroes. Whitley Councilsextended the Trade Boards Act 1909 system
to Joint Industrial Councils that encouraged (non legally binding) fair wage agreements,
[11]
while
the Ministry of Labour actively organised and advised the growth of trade unions.
[12]
This was based
on a theory of collective bargaining, agreement or action, advocated bySidney Webb and Beatrice
Webb in Industrial Democracy to remedy the inequality of bargaining power of workers.
[13]
Without
legal force behind collective agreements, the law remained in a state of collective laissez faire,
encouraging voluntarism for agreement and dispute settlement between industrial partners. The
1920s and 1930s were economically volatile. In 1926 a General Strike against coal miners' pay cuts
paralysed the country, though was broken by Winston Churchill, by then the Chancellor of the
Exchequer. The Labour Party had formed Parliamentary majorities in 1924 and 1929, but achieved
little in the way of reform, particularly after the onset of the Great Depression.
By the Second World War and the Labour government of Clement Attlee, trade union membership
was well established and collective agreements covered over 80 per cent of the workforce. With
the British Empire in rapid dissolution, immigration from Commonwealth countries, and record levels
of female workplace participation the character of Britain's workforce was changing fast. Though the
common law was sometimes comparatively progressive,
[14]
sometimes not,
[15]
the first statutes to
prohibit discrimination focused on gender and race emerged in the 1960s as the Civil Rights Act was
passed in the United States. Discrimination in employment (as in consumer or public service access)
was formally prohibited on grounds of race in 1965,
[16]
gender in 1975, disability in 1995, sexual
orientation and religion in 2003 and age in 2006.
[17]
A complicated and inconsistent jamboree of Acts
and statutory instruments was placed into a comprehensive code in the Equality Act 2010. Much
discrimination law is now applicable throughout the European Union, to which the UK acceded in
1972. Although labour laws in the early European Treaties and case law were scant,
[18]
the Social
Chapter of the Maastricht Treaty brought employment rights squarely into the EU's jurisprudence.
Meanwhile, starting from the Contracts of Employment Act 1963, workers gained a growing list of
minimum statutory rights, such as the right to reasonable notice before a fair dismissal and a
redundancy payment.
[19]
Labour governments through the 1960s and 1970s were troubled by reform
of the unwieldy trade union system. Despite producing reports such as In Place of Strife and
the Report of the committee of inquiry on industrial democracy
[20]
which would have made unions
accountable to their members created more direct workplace participation, reform did not take place.


The UK miners' strike (19841985)was a bitter confrontation between theThatcher government and coal mine
workers.
From 1979, a new Conservative government took a strongly sceptical policy to all forms of labour
law and regulation. During the 1980s ten major Acts gradually reduced the autonomy of trade unions
and the legality of industrial action.
[21]
Reforms to the internal structure of unions mandated that
representatives be elected and a ballot is taken before a strike, that no worker could strike in
sympathetic secondary action with workers with a different employer, and that employers could not
run a closed shop system of requiring all workers to join the recognised union. The wage councils
were dismantled. A public campaign against the merits of unions paralleled the decline of
membership and collective agreement coverage to under 40 per cent. In addition, the government
opted out of the EUSocial Chapter in the Maastricht Treaty. In 1997 the new Labour government
brought the UK into the EU's Social Chapter, which has served as the source for most reform in UK
law since that time. Domestic led reform was minimal. The National Minimum Wage Act
1998 established a country-wide minimum wage, but did not attempt to reinvigorate the Wage Board
system. The Employment Relations Act 1999 introduced a 60 page procedure requiring employers
to compulsorily recognise and bargain with a union holding support among workers, though union
membership remained at a level steadily declining below 30 per cent.
Employment rights and duties[edit]


All UK workers enjoy a minimal charter of employment rights,
[22]
but compared to the EUaverage have longer working
hours, more unequalpay, less time off for child care, and are less likely to have an occupational pension.
See also: European labour law, German labour law, French labour law,Australian labour
law, Canadian labour law, Indian labour law, South African labour law and US labor law
UK labour law's primary concern, particularly under the Employment Rights Act 1996, is to ensure
that every working person has a minimum charter of rights in their workplace.
[23]
Traditionally it
draws a divide between self-employed people, who are free to contract for any terms they wish, and
employees, whose employers are responsible for complying with labour laws. UK courts and
statutes, however, use a number of different terms for different rights, including "worker",
"employee", "jobholder", "apprentice" or someone with an "employment relation". A "worker", for
example, is entitled to a minimum wage of 6.31 per hour,
[24]
28 statutory minimum days of holiday,
enrolment in a pension plan, not to mention the right to equal treatment and anti-discrimination that
also apply to consumers and public services.
[25]
An "employee" has all those rights, and also a safe
system of work, the right to a written contract of employment, time off for pregnancy or child care,
reasonable notice before a fair dismissal and a redundancy payment, and the duty to contribute to
the National Insurance fund and pay income tax.
[26]
The scope of the terms "worker", "employee",
and others, are more or less left to the courts to construe according to the context of its use in a
statute,
[27]
but someone is essentially entitled to more rights if they are in a weaker position and thus
lack bargaining power. English courts view an employment contract as involving a relation of mutual
trust and confidence,
[28]
which allows them to develop and enlarge the remedies available for
workers and employers alike when one side acts out of bad faith.
Scope of protection[edit]
[show]
V
T
E
Workplace protection cases

See also: Worker, Employee and Inequality of bargaining power
As yet, the UK has not consolidated a single statutory definition of the people to whom employment
rights and duties apply. Statute and case law, both domestic and European, use 2 main definitions
(employee and worker), and approximately 3 other minor types (jobholder, apprentice, and someone
with an employment relation). The EU does have one consolidated definition of a worker, which is
someone who has a contract for work in return for a wage, or an indirect quid pro quo (as in a
communal cooperative), and also stands as the more vulnerable party to the contract.
[29]
This
reflects the kernel of classical labour law theory, that an employment contract is one infused with
inequality of bargaining power,
[30]
and stands as a justification for mandating additional terms to
what might otherwise be agreed under a system of total freedom of contract.


Sidney and Beatrice Webb, in their book Industrial Democracy argued that because workers' inequality of bargaining
power meant they could not contract for it themselves, law should create a "national minimum" of workplace rights,
with trade unions to secure a living wage.
In the UK an employee has all available rights (all the rights of a worker but also child care,
retirement and job security rights). The meaning is explicitly left to the common law under the main
statute, the Employment Rights Act 1996 section 230, and has developed according to the classical
19th century contrast between a contract of service and one for services. The government may
also pass secondary legislation to include specific groups of people into the employee
category.
[31]
While the classical test was that an employee was subject to a sufficient degree of
control,
[32]
new forms of work where people have greater autonomy in how to perform their jobs,
meant that, particularly from the mid-20th century,
[33]
additional tests of employment were developed.
Different expressions were used, including how much one could said to be integrated into the
business,
[34]
or whether one metaphorically wore the badge of the organisation. The focus was said
to be on economic reality, and form over substance. Multiple relevant factors would include how
much the employee was controlled, if they owned their tools, if they had the chance of profit, or
bore the risk of loss.
[35]
But in the late 1970s and 1980s, some courts began to speak of a new test
of mutuality of obligation. One view of this was merely that workers exchanged work for a
wage.
[36]
Another view stated that the employment relationship had to be one where there was an
ongoing obligation to offer and accept work.
[37]
This led to cases where employers, typically of
people on low wages and little legal understanding, pleaded that they had only hired a person on a
casual basis and thus should not be entitled to the major job security rights. However, the leading
case, Autoclenz Ltd v Belcher decided by a unanimous Supreme Court in 2011, brought the
definition of an employment contract in line with that in used in the EU. Confirming that employment
contracts are one of a specific type, and separate from commercial agreements,
[38]
Lord Clarke held
that an exchange of work for a wage was essential. The private "true" intentions of the parties were
not as important as the reality, because employment began in the context of an unequal bargaining
relation. As he put it,
... the relative bargaining power of the parties must be taken into account in deciding whether the
terms of any written agreement in truth represent what was agreed and the true agreement will often
have to be gleaned from all the circumstances of the case, of which the written agreement is only a
part. This may be described as a purposive approach to the problem. If so, I am content with that
description.
This meant that a group of car valeters, although described in their contracts as being self-
employed, with a right to substitute another person to do their work, and professed to have no
obligation to undertake work, were entitled to a minimum wage and paid leave. The contract terms
could be disregarded because they did not represent the reality of the situation.
[39]
In addition, a
worker is defined in ERA 1996 section 230 as someone with a contract of employment or who
personally performs work and is not a client or a customer. This concept has greater scope, and
protects more people, than does the term employee. This class of person is entitled to a safe
system of work, a minimum wage and limits on working time, as well as discrimination and trade
union rights, but not job security, child care and retirement rights. This concept thus reaches up to
protect people who are quasi-self-employed professionals, albeit not so vulnerable relative to their
quasi-employer, such as a home cleaner, or music teacher who visits student homes, or a taxi cab
driver wearing a firms logo.
Contract of employment[edit]
[show]
V
T
E
Employment contract cases

See also: Employment contract in English law, English contract law and Employment contract
Once a person's work contract is categorised, the courts have specific rules for determining, beyond
the statutory minimum charter of rights, what are its terms and conditions. Analogous rules for
incorporation of terms, and implication terms exist as in the ordinary law of contract. However,
in Gisda Cyf v Barratt, Lord Kerr emphasised that if it affects statutory rights, the process of
construction is one that must be intellectually segregated from the general law of contract, because
of the relation of dependency an employee has.
[40]
In this case, Ms Barratt was told her employment
was terminated in a letter that she opened 3 days after its arrival. When, 3 months and 2 days after
arrival, she lodged an unfair dismissal claim, the employer argued it was time barred on the ground
that in ordinary contract law one is bound by a notice when a reasonable person would have read a
message. The Supreme Court held that Ms Barratt was in time for a claim because she was only
bound by the notice when she actually read it. The applicable in employment was different, given the
purpose of employment law to protect the employee. From formation to termination, employment
contracts are to be construed in the context of statutory protection of dependent workers.


Every employee is entitled to a written statement of their employment contract,
[41]
which will usually incorporate the
workplace collective agreement, and must follow, or be better than the minimum statutory rights.
The terms of employment are all those things promised to an employee when work begins, so long
as they do not contravene statutory minimum rights. In addition, terms can be incorporated by
reasonable notice, for instance by referring to a staff handbook in a written employment
agreement,
[42]
or even in a document in a filing cabinet next to the staff handbook.
[43]
While without
express wording they are presumed not binding between the union and employer,
[44]
a collective
agreement may give rise to individual rights. The test applied by the courts is to ask loosely whether
its terms are apt for incorporation, and not statements of policy or aspiration. Where the collective
agreements words are clear, a "last in first out" rule was held to potentially qualify, but another
clause purporting to censure compulsory redundancies was held to sound like it was binding in
honour only.
[45]

[show]
V
T
E
Construed employment terms

In addition to statutory rights, expressly agreed terms and incorporated terms, the contractual
hallmark of the employment relation is the series of standardised implied terms (or terms implied in
law) that accompany it. First of all, and in addition to individualised implied terms that the courts
construe to reflect the reasonable expectations of the parties,
[46]
the courts have long held that
employees are owed additional and beneficial obligations, such as a safe system of work
[47]
and
payment of wages even when the employer has no work to offer.
[48]
Reflecting more recent priorities,
employers have also been recognised to have a duty to inform their employees of their workplace
pension rights,
[49]
although they have stopped short of requiring employers to give advice on
qualifying for workplace disability benefits.
[50]
The key implied term, however, is the duty of good
faith, or mutual trust and confidence. This is a flexible concept that is applied in a broad variety of
circumstances leading to remedies in damages or an injunction. Examples include requiring that
employers do not act in an authoritarian manner,
[51]
do not call employees names behind their
back,
[52]
do not treat workers unequally when upgrading pay,
[53]
do not run the company as a front for
international crime,
[54]
or do not exercise discretion to award a bonus capriciously.
[55]
There has been
disagreement among judges about the extent to which the core implied term of mutual trust and
confidence can be 'contracted out of', with the House of Lords having held that the parties are "free"
to do so, while others approach the question as a matter of construction of the agreement which is
within exclusive judicial competence to define.
[56]

The second, and older hallmark of the employment contract is that employees are bound to follow
their employers instructions while at work, so long as that does not contravene statute or their
agreed terms. Every employment relation leaves the employer with a residue of discretion,
historically expressed as the master-servant relationship. Today, in practice, this leaves the
employer with the ability to vary the way work is done in accordance with business need.
[57]
The
courts have allowed this to continue, so long as it does not contradict a contracts express terms,
which always require an employees consent,
[58]
or renegotiation of a collective
agreement.
[59]
However, it has also been held that employers may insert flexibility clauses allowing
them to reserve the right to vary any contract term.
[60]
The limits of the courts tolerance of such
practices are evident if they touch procedures for accessing justice,
[61]
or potentially if they would
contravene the duty of mutual trust and confidence.
Health and safety[edit]
[show]
V
T
E
Health and safety sources

Main articles: Occupational safety and health, Health and Safety at Work etc. Act 1974, English tort
law, Insurance in the United Kingdom and National Health Service
One of the principle terms that accompanies the employment relationship is that the employer will
provide a "safe system of work". As the industrial revolution developed, accidents from a hazardous
working environment were a front line target for labour legislation, as a series of Factories Acts, from
1802, required minimum standards in workplace cleanliness, ventilation, fencing machinery, not to
mention restrictions on child labour and limits to the working day. These Acts typically targeted
particular kinds of workplaces, such as mines, or textile mills, before the more generalised approach
took hold now seen in the Factories Act 1961. That applies to any workplace where an article is
made or changed, or animals are kept and slaughtered.
[62]
The Employer's Liability (Defective
Equipment) Act 1969 made employers automatically liable for equipment with defects supplied by
third parties. Because isolated employees lack the technical skill, time, training to litigate, such
regulation's primary line of enforcement was through inspectors or agencies before matters went to
court. Today the Health and Safety at Work etc. Act 1974, enforced by the Health and Safety
Executive, is the main law. The HSE can delegate enforcement to local authorities, whose
inspectors have the power to investigate and require changes to workplace systems. In
addition, HSWA 1974 section 2 foresees that employees will set up their own workplace committees,
elected by the employees and with the power to codetermine health and safety matters with
management. Spelling out the general duties found in HSWA 1974, are a set of health and safety
regulations, which must also stay in line with the European-wide harmonised requirements of
the Health and Safety Directive.
[63]


19th century regulation limited child labour and working time in factories and mines, but employers were not always
liable for accidents until 1937.
While the modern scheme of legislation and regulation engenders a comprehensive approach to
enforcement and worker participation for health and safety matters, the common law remains
relevant for getting civil law compensation, and some limits on an employers' duties. Although the
legislative provisions are not automatic, breach of a statutory duty is evidence that a civil law duty
has been breached. Injured employees can generally claim for loss of income, and relatives or
dependents recover small sums to reflect distress.
[64]
In principle, employers are vicariously liable for
all actions of people acting for them in the "course of employment" whenever their actions have a
"close connection" to the job, and even if it breaks an employer's rules.
[65]
Only if an employee is on
a "frolic of his own", and the employer cannot be said to have placed him in a position to cause
harm, will the employer have a defence. Under the Employers Liability (Compulsory Insurance) Act
1969, employers must take out insurance for all injury costs, and insurance companies are
precluded by law and practice from suing their employees to recover costs unless there is
fraud.
[66]
However, until the mid-20th century there were a series of major limitations. First, until
1937, if an employee was injured by a co-worker, the doctrine of common employment, the employer
could only be liable if it was shown they were personally liable by carelessness in selecting
staff.
[67]
The House of Lords changed this in Wilsons & Clyde Coal Co Ltd v English,
[68]
holding an
employer had a non-delegable duty of care for all employees. Lord Wright held there were
"fundamental obligations of a contract of employment... for which employers are absolutely
responsible". The second old restriction was that, until 1891, volenti non fit injuria meant workers
were assumed to voluntarily accept the dangers of their work by agreeing to their contracts of
employment.
[69]
Only if an employee callously ignores clear directions of the employer will he be
taken to have voluntarily assumed the risk, like in ICI Ltd v Shatwell
[70]
where an experience quarry
shotfirer said he "could not be bothered" to wait 10 minutes before setting of a detonation, and blew
up his brother. Third, even if a worker was slightly at fault, until 1945 such contributory
negligenceprecluded the whole of the claim. Now the court will only reduce damages by the amount
the employee contributed to their own injury.
[71]
The fourth defence available to employers, which still
exists, is ex turpi causa non oritur actio, that if the employee was engaged in any illegal activity they
may not claim compensation for injuries. In Hewison v Meridian Shipping Services Pte Ltd
[72]
Mr
Hewison concealed his epilepsy so that he could work offshore was technically guilty of illegally
attempting to gain a pecuniary advantage by deception under the Theft Act 1968 section 16. After
being struck in the head by a defective gangplank he suffered worse fits than before, but the Court of
Appeal, by a majority, held his illegal act precluded any compensation.
The common law of tort also remains particularly relevant for the type of liability an employer has
where there is scientific uncertainty about the cause of an injury. In asbestos disease cases, a
worker may have been employed with at a number of jobs where he was exposed to asbestos, but
his injury cannot with certainty be traced to any one. Although he may be able to sue all of them, a
number may have already gone insolvent. In Fairchild v Glenhaven Funeral Services Ltd
[73]
the
House of Lords held that if any employer had materially increased the risk of harm to the worker,
they could would be jointly and severally liable and could be sued for the full sum, leaving it up to
them to seek contribution from others and thus the risk of other businesses' insolvency. For a brief
period, in Barker v Corus
[74]
the House of Lords then decided that employers would only be liable on
a proportionate basis, thus throwing the risk of employers' insolvency back onto workers.
Immediately Parliament passed the Compensation Act 2006 section 3 to reverse the decision on its
facts. It has also been held inChandler v Cape plc,
[75]
in 2011, that even though a subsidiary
company is the direct employer of a worker, a parent company will owe a duty of care. Thus
shareholders may not be able to hide behind the corporate veil to escape their obligations for the
health and safety of the workforce.
Wage regulation[edit]
See also: Wage regulation, National Minimum Wage Act 1998 and Tax credit
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Economic theory suggests an excessive minimum wage may raise unemployment as it fixes a price above demand
for labour, although a reasonable minimum wage enhances growth because labour markets are
persistently monopsonistic and when poorer workers have more to spend it stimulates effective aggregate demandfor
goods and services.
[citation needed]

Since 1998, the United Kingdom has fixed a national minimum wage,
[76]
and sets outer limits on
working time for virtually all workers. Direct wage and working time regulation is a comparatively
recent phenomenon, as it was traditionally left to collective bargaining to achieve "a fair day's wage
for a fair day's work". The Truck Acts were the earliest wage regulations, requiring workment to be
paid in money, and not kind. Now, theEmployment Rights Act 1996 section 13 stipulates that
employers can only dock employees wages (e.g. for missing stock) if the employee consented to
deductions in writing. This, however, does not cover industrial action,
[77]
so following ancient
common law on part performance of work, employees who refused to 3 out of 37 hours a week in
minor workplace disobedience, had their pay cut for the full 37.
[78]
From the Trade Boards Act
1909,
[79]
the UK had set minimum wages according to the specific needs of different sectors of work.
But this system was eroded through the 1980s and eventually repealed in 1993.
[80]
One wages
council that survived was the Agricultural Wages Board, established under the Agricultural Wages
Act 1948; however, a final consultation on its abolition was announced in October 2012.
To bring the United Kingdom back into compliance with basic standards in international
law,
[81]
the National Minimum Wage Act 1998 was introduced. The minimum wage takes effect in
every worker's contract. Workers do not need to show "mutuality of obligation" or any other
requirement except that they personally perform work for a wage and is not a client.
[82]
One curious
exclusion, however, is a pupil barrister who in Edmonds v Lawson
[83]
was held to not be "working"
but be "conscientious in receiving instruction". The minimum wage rate is reset annually after
guidance from the Low Pay Commission, and on 1 October 2011 it stood at 6.08 for over-21-year-
olds, 4.98 for 18- to 20-year-olds, 3.68 for under-18-year-olds finished with compulsory education
and 2.60 for under 19-year-olds or first year apprentices.
[84]
The National Minimum Wage
Regulations 1999
[85]
spell out the details of how the minimum wage should be calculated. Total pay
received is divided by the hours actually worked over an average "pay reference period" of one
month.
[86]
This definition has given rise to litigation in cases where a worker can stay at home but
must answer phone calls, is allowed to rest or sleep during shifts, or must make themselves
available "on call" over a long period. Generally speaking, it is irrelevant whether one is at home or
not. If a worker is given sleeping facilities and is not awake, the minimum wage need not be
paid.
[87]
And if a worker is "on call", then this time still counts at work if the worker is bound to stay
within the vicinity of the workplace.
[88]
However, an exception in regulation 28 allows an employer to
agree with a worker what the hours worked actually are, if they would ordinarily be unmeasured.
In Walton v Independent Living Organisation Ltd
[89]
a worker who cared for a young epileptic lady
had to be on call 24 hours a day, 3 days a week, but could do her own activities outside tasks such
as going shopping, making meals and cleaning. Her company made an agreement with her that her
tasks took 6 hours and 50 minutes a day, which resulted in her 31.40 allowance meeting the
minimum wage. Certain deductions may be made including 4.51 per day for any accommodation
the employer provides, though extra bills, such as for electricity, should not ordinarily be
charged.
[90]
The minimum wage can be enforced individually through an ERA 1996 section 13 claim
for a shortfall of wages in a Tribunal.
[91]
A worker may not be subjected to any detriment for
enquiring, or requesting records or complaining about it.
[92]
However, because many workers will not
understand how to do this, or have the resources, a primary enforcement mechanism is through
inspections and compliance notices issued by Her Majesty's Revenue and Customs.
[93]
A remedy of
up to 80 times the minimum wage is available to the worker and HMRC can enforce a penalty of
twice the minimum wage per worker per day.
[94]

Working time and child care[edit]
Main articles: Working time in the United Kingdom, Working time, Work-life balance and Child care
in the United Kingdom
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UK employers are reimbursed by the government when employees take paid leave for child care.
[95]

The Working Time Regulations 1998 set limits on working time, and implement the basic
requirements of the Working Time Directive.
[96]
Its most concrete measure is, again following basic
rights in international law,
[97]
mandating a minimum period of 28 days, or four full weeks, in paid
holidays for all workers each year (though this includes public holidays).
[98]
There is no qualifying
period for this, or any other working time right,
[99]
because beyond the importance of the law in
seeking to strike a balance between work and life, sufficient periods of rest and leisure are seen as a
critical element of workershealth and safety.
[100]
Nor is it possible for an employer to give a worker
"rolled up holiday pay", for instance an additional 12.5% in a wage bill, in lieu of taking actual
holidays. The employer must make sure the worker does in fact take paid holidays, and if the worker
has not done so and the job terminates, the employer must give an additional payment for the
unused holiday entitlement.
[101]
Where a person works at night, she may only do 8 hours in any 24
hour period on average, or simply 8 hours at most is dangerous.
[102]
Moreover every worker must
receive at least 11 consecutive hours of rest in a 24 hour period, and in every day workers must
have at least a 20 minute break in any 6 hour period.
[103]
The most controversial and widely known
provisions in the working time laws, however, concern the maximum working week. Under the
Directive, this is 48 hours. Although people in the United Kingdom work the longest hours on
average in Europe, and among the longest in the world, highest work related stress and absentee
rates, successive UK governments have remained sceptical about the maximum working week's
merit. The maximum does not apply to anyone who is self-employed or who can set their own hours
of work, as it is aimed to protect workers who possess less bargaining power and autonomy over the
way they do their jobs.
[104]
Nevertheless, all UK workers may "opt out" of the 48 hour week by
individually signing an opt out form.
[105]
Theoretically a worker may always change her mind after
having opted out, without suffering any detriment.
[106]
If the employer has not got the worker to opt
out, then the 48 hour week is not a rigid maximum, but is taken as an average over 17
weeks.
[107]
The same rules have developed as for the minimum wage, regarding "on call" time, so
that people with jobs involving long periods where they must make themselves available, but not
necessarily be active, are regarded as working if they are bound to remain awake and close to their
workplace.
[108]
This created a significant problem for junior doctors, where the culture has typically
been in all European countries that very long hours are expected. The European Court of Justice's
decision in Landeshauptstadt Kiel v Jaegar
[109]
that junior doctors' on call time was working time led
a number of countries to exercise the same "opt out" derogation as the UK, albeit limited to medical
practice. The Health and Safety Executive is the UK body charged with enforcing the working time
laws, though it has purposively taken a "light touch" approach to enforcement.
[show]
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Rights to leave from work to care for children have important consequences for career advancement
and gender equality. The major right, which goes beyond the minimum set by the Pregnant Workers
Directive,
[110]
is a mix of paid and unpaid maternity leave. A contract of employment can always be
and often is more generous. Otherwise, the minimum right to paid maternity leave arises for women
employees after 26 weeks work, though the right to unpaid leave has no qualifying period.
[111]
Under
the Maternity and Parental Leave, etc Regulations 1999
[112]
mothers must take compulsory leave at
the time of child birth for two weeks. After that comes a right to 6 weeks' leave paid at 90 per cent of
ordinary salary. Then is 20 weeks leave paid at a rate set by statute, which was 123.06 per week in
2010. This has to be at least the same level asstatutory sick pay.
[113]
Then she may take additional
but unpaid maternity leave for another 26 weeks.
[114]
She must tell the employer 15 weeks before the
date of the expected birth, in writing if the employer requests it. Except insofar as they administer the
payments, employers do not bear most costs of maternity leave as they are reimbursed by the
government according to their size and national insurance contributions.
[115]
Along with different
forms of leave, mothers have the right to not suffer any professional detriment or dismissal while
they are absent, and should be able to return to the same job after 26 weeks, or another suitable job
after 52 weeks.
[116]
For fathers, the position is less generous. To redress the balance between how
much of child raising each partner bears, under the Additional Paternity Leave Regulations 2010
[117]
it
will be possible for a woman to transfer up to 26 weeks of her leave entitlements to her male partner.
Otherwise thePaternity and Adoption Leave Regulations 2002 state that a man is entitled to a
minimum of just 2 weeks off, at the statutory rate of pay.
[118]
Both parents may also benefit from
"parental leave" provisions in the MPLR 1999, passed after the Parental Leave Directive.
[119]
Until a
child turns 5, or a disabled child turns 18, parents can take up to 13 weeks unpaid leave.
[120]
Unless
there is another collective agreement in place, employees should give 21 days' notice, no more than
4 weeks in a year, at least 1 week at a time, and the employer can postpone the leave for 6 months
if business would be unduly disrupted.
[121]
Otherwise similar provisions apply on employees not
suffering detriment or dismissal and having a right to their previous jobs back.
[122]
"Emergency leave"
is, under ERA 1996 section 57A, available for employees to deal with birth or a child's issues at
school, as well as other emergencies such as dependents' illness or death, so long as the employee
informs the employer as soon as reasonably practicable. In Qua v John Ford Morrison
Solicitors
[123]
Cox J emphasised that there is no requirement to deliver daily updates.
Beyond the period around child birth, after EA 2002, employees gained the right to request flexible
working patterns for the purpose of caring for a child under the age of 6, or a disabled child under
age 18. The right to make the request is contained in ERA 1996 section 80F, and despite the fact
that employers may decline the request, statistics show that under the obligation to consider,
employers grant requests in 80 per cent of cases. An employee must make the request in writing,
the employer must reply in writing, and can only decline the request on the basis of a correct fact
assessment,
[124]
and within 8 grounds listed in section 80G, which generally concern business and
organisational necessity. In Commotion Ltd v Rutty
[125]
a toy warehouse assistant was refused a
reduction to part-time work because, according to the manager, everyone needed to work full-time to
maintain "team spirit". The Employment Appeal Tribunal ruled that because "team spirit" was not one
of the legitimate grounds for refusal, Mrs Rutty should get compensation, which is set at a maximum
of 8 weeks' pay.
[126]

Instituto nazionale della providenza social v Bruno [2010] IRLR 890, part-time workers and
occupational pensions
Apprenticeships, Skills, Children and Learning Act 2009 (c 22)
Occupational pensions[edit]
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Main article: Pensions in the United Kingdom
Occupational pension schemes are one of the three pillars of pension provision in the UK, in addition
to the state pension administered by the government based on National Insurancecontributions, and
private, or "personal pensions" which individuals may arrange for themselves.
[127]
After the Pensions
Act 2008, and due to begin in October 2012, every "jobholder" (defined as a worker, age 16 to 75,
with wages between 5,035 and 33,540
[128]
) must be automatically enrolled by the employer in an
occupational pension scheme, unless they choose to opt out.
[129]
In order to reduce the
administrative complexity, a new non-departmental trust fund called the National Employment
Savings Trust is established as a cheaper public competitor, able to take advantage of
significant economies of scale, compared to existing fund manager options on the private pension
market.
[130]
Employers will be required to set aside their jobholders' wages at an agreed percentage,
and negotiate how much they will give in contributions, if anything. Outside this "public option", it has
typically been up to the employer often in negotiation with the trade union, to establish a trust fund
for pension schemes; however, there has not yet been any legal duty on employers to do so, leaving
most people with nothing but the state pension.
[131]
However, when there is a pension in place as a
result of a term in the jobholder'semployment contract, the employer is under a duty to inform their
staff about how to make the best of their pension rights.
[132]
Moreover, workers must be treated
equally, on grounds of gender or otherwise, in their pension entitlements.
[133]
Where occupational
pensions exist, the employer typically acts as a trustee and creates a board of trustees, or contracts
with a trust corporation, to oversee the management of the workforce's pension savings. Following
the Goode Report of 1993 on pensions, it has been a requirement that the pension trust members
have the right to "codetermine" the pension management by having a vote to elect a minimum of one
third of the trustees, or corporation directors, either directly or through their trade
union.
[134]
Often member nominated trustees are one half of the scheme, and the Secretary of State
has the power by regulation, as yet unused, to increase the minimum up to one half.
[135]
Trustees are
charged with the duty to manage the fund in the best interests of the beneficiaries, in a way that
reflects their preferences,
[136]
by investing the savings in company shares, bonds, real estate or other
financial products.


Every jobholder will from 2012 be automatically enrolled in anoccupational pension, and cancodetermine how
their retirementsavings are invested and their voice in company shares is used.
[137]

While there are minimum standards for worker participation in the management of any occupational
pension, the terms of people's pensions may be very different particularly regarding who bears
the risk of workers having a long life after retirement. Increasingly, "defined benefit" plans (or "final
salary" schemes) where the employer pays a fixed sum however long the former worker lives and
thus averages out the risk between different workers, have been scrapped. The contrasting system
is a "defined contribution" plan, where individual workers simply retire with a pension that is as much
as the contributions they made, meaning that if they live longer than they plan, they run the risk of
being left with only the state pension. Some schemes combine elements of each. The rate of decline
in defined benefit plans has been rate consistent with the decline in trade union membership, and
increasing mobility of the labour market. Defined benefit plans also attract more regulation, as many
employers have not necessarily actually kept aside money from "contributions" shown workers' pay
slips, since the employer simply pays the final salary out when the time comes. This problem,
revealed in early 1990s scandals like the Robert Maxwell scandal, led to the introduction of
requirements for minimum funding, and also taking out insurance in the event that a company goes
insolvent, and the pension fund is in deficit.
[138]
This system is overseen by the Pensions
Regulator,
[139]
which also takes general complaints about the activities of trustees or management. In
addition, there exists a Pensions Ombudsman who may hear complaints and take informal action
against employers who fall short of their statutory duties.
[140]

Income tax and insurance[edit]
See also: Taxation in the United Kingdom, National Insurance and Tax credit
UK tax history and Taxation in medieval England
Income Tax Act 1803 to fund the Napoleonic Wars, repealed and then reintroduced by Robert
Peel in the Income Tax Act 1842
National Insurance Fund, whereby people pay for their (1) state pensions (2) unemployment
insurance (3) redundancy protection (4) contributions to health care.
Beveridge Report
IR35, disguised employment
Income Tax (Earnings and Pensions) Act 2003 and Social Security Contributions
(Intermediaries) Regulations 2000, SI 2000/727
Income Tax Act 2007, mostly replacing Income and Corporation Taxes Act 1988
Income Tax (Earnings and Pensions) Act 2003
Income Tax (Trading and Other Income) Act 2005
Tax return (United Kingdom) include the P35 form filled out by employers for the employees' tax.
In the PAYE series, aP60 form from employers proving tax was paid at the end of the
year, P45 a form when employment ceases recording tax up to the end of employment. P11D is
a form for employers to disclose expenses and benefits given to employees earning over 8500
that do not go through the payroll. Each person has an individual Tax code (PAYE). Similar
abbreviations for forms are used for self-assessment and tax credits, e.g. S100 and TC600.
Finance Act 2010 section 2 and Schedule 1, introducing the temporary bank payroll tax
Working tax credit and Child tax credit, to be replaced by the Universal credit in 2016
Child benefit, a weekly payment of over 20 a week for the first child, and over 13 a week for
each additional child. Introduced by the Family Allowances Act 1945, followed by the Family
Allowances and National Insurance Act 1952 and the Family Allowances Act and National
Insurance Act 1956
Pension tax simplification in 2004, simplified the taxes applied to pensions. It abandoned
the retirement annuity plan that had existed from the Income and Corporation Taxes Act 1970 s
226 contracts and ICTA 1988 s 620
Civil liberties at work[edit]
See also: Civil liberties in the United Kingdom
Common law and mutual trust and confidence
Human Rights Act 1998 ss 3-6
ECHR article 8, right to privacy
Halford v United Kingdom [1997] IRLR 471
Smith and Grady v United Kingdom [1999] IRLR 734
Kara v United Kingdom (1998) No. 36528/97 ECHR
Regulation of Investigatory Powers Act 2000 and Telecommunications (Lawful Business
Practice) (Interception of Communications) Regulations 2000, an employer cannot check
personal emails at all without the sender's consent, even from a work email account. It may
check business emails to assess whether a crime has been committed or unauthorised activity
has occurred, but only in strictly defined circumstances.
Data Protection Act 1998 s 13, compensation for injury or distress if an employer, without telling
the person and stating its purpose, collects personal data
ECHR article 10, right to freedom of expression
Pay v United Kingdom [2008] ECHR 1007, [2009] IRLR 139
Glasenapp v Germany (1987) 9 EHRR 25
Vogt v Germany (1996) 21 EHRR 205
Ahmed v United Kingdom (1998) EHRR 29
Grigoriades v Greece (1997) 27 EHRR 464
ECHR article 6, right to a fair trial
R (Wright) v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267
ECHR Prot 1, art 1, right to property
Nerva v United Kingdom [1996] IRLR 461; (2003) 36 EHRR 4, [2002] IRLR 815
The right with the greatest direct impact for labour law is the right to freedom of association
under ECHR article 11.
Workplace participation[edit]


One of the earliest episodes of strike action, thePeasants' Revolt of 1381 was met with strict regulation of medieval
workers' wages.
See also: UK company law and Labour law
Although a wide set of employment rights create minimum standards of decency at work, the most
important right to achieve conditions beyond those minima is participation in an enterprise's
management. The UK has slowly codified its collective labour relations in law: there are legislative
rights to information, consultation (on redundancies, business restructuring and management
generally) and participation (so far, in pension management and health and safety committees) in
workplace and company affairs. Trade unions, which are organised largely by contract, have the aim
of improving their members' terms and conditions.
[141]
They must follow a democratic internal
structure, and members cannot be excluded without good reason or discriminated against by their
employers. Their main role is organising and representing a workforce through statutory participation
channels, andcollective bargaining. Since 1999, unions can follow a complex statutory procedure
which will eventually mandate that employers recognise and bargain with them. Collective
agreements typically set scales of pay and working hours, require better pensions, training and
workplace facilities, with a system to update terms and conditions as the business environment
changes. The ability to bargain rests on the final resort of collective action. As a counterweight to
management's power to make workers redundant,
[142]
an official trade union is protected by law in its
ability to call a strike. Collective action, including a strike, must always be "in contemplation or
furtherance of a trade dispute".
[143]
Since the 1980s, there have also been strict requirements to
ballot the workforce and warn the employer before, to not call sympathy strikes, and to take only
passive action in picketing or protests, which have been called into question under international law.
Trade unions[edit]
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See also: Trade unions in the United Kingdom and Voluntary association
Generally speaking, trade unions in the United Kingdom and their members have a broad freedom of
association to organise their affairs in the way they choose. This reflects the standards set in
the European Convention on Human Rights, article 11, and the ILO Right to Organise and Collective
Bargaining Convention, 1949. Trade unions are organisations which have historically been based
on freedom of contract, while the association's property held on trust for its members. However,
since 1984 UK unions have been increasingly heavily regulated by statute to give members a series
of rights beyond the common law: rights to vote for the union's executive, and to vote on use of
political funds and strike action; rights to sue in court regarding a series of duties owed by the
union's management, on finances and transparency; and rights to regarding membership of the
organisation: to not be unjustly expelled, and to not be a member at all.


Reflecting the democratic tradition of British unions, in 2007, 2010 and 2013 Jerry Hicks challenged the general
secretary of Unite the Union, and only lost by small margins in the system of voting by postal ballotsamong members.
(1) Voting and governance The principle that the common law enforced a union's own rules, and that
unions were free to arrange their affairs is reflected in the ILO Freedom of Association Convention,
and article 11 of the European Convention on Human Rights, subject to the requirement that
regulations "necessary in a democratic society" may be imposed. Unions must have an executive
body and that executive must, under TULRCA 1992 sections 46 to 56, be elected at least every five
years, directly in a secret, equal postal vote of union members, and if irregularities are alleged,
complaints can be taken up by the Trades Union Certification Officer.
The express terms of the union rule book can, like any contract, be supplemented with implied terms
by the courts as strictly necessary to reflect the reasonable expectations of the parties,
[144]
for
instance, by implying the Electoral Reform Society's guidance to say what happens in a tie break
situation during an election when the union rules are silent.
[145]

Political donations
Strike ballots
(2) Other members' rights If there are irregular occurrences in the affairs of the union, for instance if
negligence or mismanagement is alleged and a majority could vote on the issue to forgive them,
then members have no individual rights to contest executive decision making.
[146]
However, if a
union's leadership acts ultra vires, beyond its powers set out in the union constitution, if the alleged
wrongdoers are in control, if a special supra-majority procedure is flouted, or a member's personal
right is broken, the members may bring a derivative claim in court to sue or restrain the executive
members. So inEdwards v Halliwell
[147]
a decision of the executive committee of the National Union
of Vehicle Builders to increase membership fees, which were set in the constitution and required a
majority vote, was able to be restrained by a claim from individual members because this touched
both a personal right under the constitution and flouted a special procedure.
(3) Membership rights
Exclusion
Conflicts between unions
Bridlington Principles and TUC, Disputes Principles and Procedures (2000)
ASLEF v United Kingdom [2007] ECHR 184
Esterman v NALGO [1974] ICR 625
Participation[edit]
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See also: Codetermination, UK company law and Works council
Although direct participation rights in UK companies or organisations have a long history,
[148]
the
ability for workers to elect directors or have a binding voice became rare after 1979. Historically,
participation rights existed across a broad range of sectors including the gas industry, port
authorities, iron and steel, and post, and the UK had the first "codetermination" laws in the
world.
[149]
Today, a right of codetermination exists by law in universities,
[150]
and occasionally in
private companies or government bodies by voluntary arrangement. By contrast in 16 out of
28 EU member states employees have participation rights in private companies, 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.
[151]
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, theCompanies 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.
[152]
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.
[153]
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
[154]
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.
[155]
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 on one workplace issue, although not dismissals or
working time. ThePensions 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.
There have, at the initiative of the European Union been a growing number of "work councils" and
"information and consultation committees", but unless an employer voluntarily concedes to staff
having a binding say, there is no legal right to participate in specific questions of workplace policy.
Participation at work is limited to information, consultation, collective bargaining and industrial action.
Information and consultation[edit]
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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,
[156]
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
Collective bargaining[edit]
See also: Collective bargaining
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Otto Kahn-Freund(1900-1979) 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".
Right to union membership (a) no refusal of employment, and (b) no detriment or dismissal
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 underTULRCA
1992 s 146.
Members rights to time off for recognised union duties
Right against union membership, so no closed shop
Right to be represented by unions in disciplinary or other hearings
Right to union representatives to time off for union duties
Right of the union to be represented for the purpose of collective bargaining
Union statutory recognition under TULRCA 1992 Sch A1
Certifying trade union independence
Collective agreements not, without the contrary intention expressed, legally binding
R (NUJ) v CAC [2005] IRLR 28 (CA)
Collective action[edit]
See also: Collective action in the United Kingdom, Strike action and Picketing (protest)
[show]
V
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Collective action sources

The ability of a trade union to ensure that an employer abides by a collective agreement, or any
worker rights, is contingent upon the extent of workers' right to take collective action, including
the right to strike. The right of workers to collectively withdraw their labour in protest is also seen as
necessary for the maintenance of a democratic society, and has frequently been used as a protest
against political repression (since the Peasants' Revolt of 1381), to prevent military coups against
democratic governments (e.g. the general strike in Germany against the Kapp Putsch in 1920), or as
part of resistance to dictatorships (e.g. in the 2008 Egyptian general strike and the Egyptian
Revolution of 2011). Anti-democratic regimes necessarily suppress collective action by workers, and
for this reason the right to strike is regarded as a fundamental human right in international law.
Protection is express in the case law of the European Court of Human Rights under article 11,
[157]
in
theEU Charter of Fundamental Rights article 28, and implicitly in the ILO Convention 87 (1948)
articles 3 and 10.
[158]
However, because of its importance for upholding democratic society, and
furthering the economic and social interests of people at work, the right to take collective action has
a controversial history at common law. It was heavily constrained by the Trade Union and Labour
Relations (Consolidation) Act 1992 in sections 219 to 246, meaning the UK falls below international
standards in several respects.
First, the objectives and targets of a strike were tightly constrained by TULRCA 1992. Underneath
statute, the common law was ambivalent to collective action. In cases such as Mogul Steamship Co
Ltd v McGregor, Gow & Co,
[159]
and Crofter Hand Woven Harris Tweed Co Ltd v Veitch
[160]
the
House of Lords held there was a common law right to collective bargaining and collective
action.
[161]
However on other occasions, such as the notorious Taff Vale case
[162]
and Quinn v
Leathem,
[163]
orRookes v Barnard,
[164]
differently composed courts held that at common law trade
union would be liable for the economic loss caused to an employer for organising a strike.
[165]
On this
view, even though an employer might not be liable for the economic losses of unemployment caused
if it collectively dismisses workers (because contract terms drafted by the employer invariably
allowed it) a union could be liable to the employer. A general framework has been that liability could
exist on the grounds of various economic torts (particularly conspiracy to injure,
[166]
inducement of
breach of contract,
[167]
ortortious interference with a contract
[168]
) unless statute grants a specific
immunity for the trade union from civil liability.
[169]
In TULRCA 1992 section 219 repeats the classic
formula,
[170]
that collective action by a trade union does not bring liability if done "in contemplation or
furtherance of a trade dispute". But although statute presumes that there can be liability on a union
at common law for strike action, the issue is not finally resolved.
Who may be the target, or what can be the objective, of the strike? (trade dispute, secondary,
political action)
RMT v United Kingdom [2014] ECHR 366, restrictions on solidarity (or secondary) action
within margin of appreciation under article 11
TULRCA 1992 s 244, no political action
Before a strike, what needs to be done to claim the right? (balloting, notifications)
During a strike, what can employees and employers do? (picketing, dismissal, benefits)
What sanctions does an employer have if there are violations of the rules? (injunctions and
damages)
Equality[edit]
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 states people should be judged according to thecontent 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 the
EU's case law and the Equal Treatment Directive for gender, the Racial Equality Directive and
the Employment Equality Framework Directive for disability, sexual orientation, religion or belief and
age,ree major EU Equality Directives.
[171]
Like former UK legislation, this set up mirrors much of 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,
[172]
the EA
2010 combats discrimination based on gender (including pregnancy), race, sexuality (including
marital status), belief, disability and age.
[173]
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 workstatus.
[174]
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.
[175]
Unequal treatment on other grounds (e.g. 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 (e.g. 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 thegender 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.
Discrimination[edit]
[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.
[176]
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.
[177]
The claimant's trait merely has to be the reason for the unfavourable
treatment.
[178]
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
[179]
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.
[180]
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.
[181]
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.
[182]
And in English v Sanderson Blinds Ltd, a man who was
fromBrighton and went to boarding school was teased for being gay. Even though he was married
with children, he successfully claimed discrimination because of sexuality.
[183]
An instruction by an
employer to discriminate against customers or anyone else also violates the law.
[184]



Under the Equality Act 2006, theEquality 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]
V
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Harassment cases

[show]
V
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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 theEquality Act
2010 sections 26 and 40, define harassment as where a person'sdignity 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' NHS Trust
[185]
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 Helens MBC
v Derbyshire
[186]
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,
[187]
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.
[188]
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.
[189]
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
[190]
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 (e.g. 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
[191]
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
Justification[edit]
[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,
[192]
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
[193]
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.
[194]
This was even so, in Sirdar v The Army Board &
Secretary of State for Defence
[195]
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.
[196]
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,
[197]
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.
[198]
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,
[199]
should not
involve "generalisations" rather than reasons specific to the workers in question,
[200]
and budgetary
considerations alone are not to be considered an "aim".
[201]
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
[202]
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
[203]
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.
[204]
In Enderby v Frenchay Health Authority
[205]
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
[206]
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,
[207]
and can even result in liability for the union that concluded
them.
[208]

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.
[209]
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.
[210]

Sunday working, or time off for prayer
Qualifications, experience, administration and/or market necessity?
Disability and positive action[edit]
[show]
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Disability cases

See also: Disability and Affirmative action
According to Chacn Navas v Eurest Colectividades SA
[211]
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,
[212]
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 OHanlon v
Revenue and Customs Commissioners
[213]
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,
[214]
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.
[215]
In Marschall v
Land Nordrhein Westfalen
[216]
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
[217]
Gteborg 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 Badecks
application
[218]
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.
Atypical work[edit]
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,
[219]
the Fixed-Term Work Directive
[220]
and the Temporary and Agency Work Directive
[221]
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. ThePart-time Workers (Prevention of Less Favourable Treatment) Regulations
2000
[222]
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.
[223]
One of the first leading cases, Matthews v Kent and Medway Fire
Authority,
[224]
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
[225]
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".
[226]
In addition to a ban on less
favourable treatment, without objective justification,
[227]
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.
[228]



The deaths of 21 immigrant cockle pickers at Morecambe Bay led to re-legislation to require employment agencies to
be licensed, in theGangmasters (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.
[229]
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.
[230]
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
[231]
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.
Free movement and immigration[edit]
Main articles: United Kingdom immigration law and Freedom of movement for workers
Treaty on the Functioning of the European Union
Immigration to the United Kingdom since 1922
British nationality law
Commonwealth Immigrants Act 1962
Commonwealth Immigrants Act 1968
Immigration Act 1971
Immigration Rules
Indefinite leave to remain
Leave to enter
UK Border Agency
Immigration to Europe
Illegal immigration to the United Kingdom
Job security[edit]
Main articles: Reasonable notice, Unfair dismissal, Wrongful dismissal, Layoff and Job security


Unemployed men at a union building during the first global Great Depression, July 1930. A country comparative
database on the world's dismissal regulations is found atwww.ilo.org.
Originating with the Contracts of Employment Act 1963, the Redundancy Payments Act 1965 and
the Industrial Relations Act 1971 UK workers have three principal job security rights, now
consolidated in the Employment Rights Act 1996, sections 86, 94 and 135. These statutory
provisions override the old common law position that a dismissal would only be wrongful if it
contravened the contract's express or implied terms. First, after one month's work anemployee must
have one week's notice before dismissal. Second, after one year's work, the dismissal must be for a
good business reason. If an Employment Tribunal is not convinced the dismissal is justified on
grounds of an employee's capability, conduct, redundancy or another good reason, the dismissal will
be "unfair" and the employee will be awarded damages. A court may order that an employee should
get their job back, but this is rare. Third, after two years' work and if dismissed, an employee is
entitled to a redundancypayment, which like the notice period increases according to the number of
years worked. Contracts typically go beyond this bare minimum, but cannot go below. The UK has
not yet ratified the ILO Termination of Employment Convention
[232]
and compared to its European
and Commonwealth counterparts, jobs in the UK are relatively insecure, particularly since workers
have little formal mechanism, excluding pressure through collective bargaining, to challenge a
management's decision about dismissals before they take place. When collective redundancies are
proposed, however, EU law has introduced a requirement that employers consult on
changes.
[233]
EU law also introduced a rule that if a business is transferred, for instance, during a
merger or acquisition, employees may not have their terms worsened or lose their jobs without a
good economic, technical or organisational reason. If employees do lose their work, they may fall
back on a minimal system of state insurance, funded primarily through income tax or National
Insurance, to collect a "jobseekers allowance", and may make use of public employment agencies to
find employment again.
Wrongful dismissal[edit]
[show]
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Wrongful dismissal cases

Main article: Wrongful dismissal
Wrongful dismissal refers to a termination of employment which contravenes a contract's terms,
whether expressly agreed or implied by the courts. This depends on construction of the contract,
read in the context of the statutory charter of rights for employees in the ERA 1996.
[234]
In the old
common law cases, the only term implied by the courts regarding termination was that employers
had to give reasonable notice, and what was "reasonable" essentially depended on the professional
status of the employee. In Creen v Wright
[235]
Lord Coleridge CJheld that a master mariner was
entitled to a month's notice, though lower class workers could probably expect much less,
"respectable" employees could expect more, and the period between wage payments would be a
guide.
[236]
Now the ERA 1996 section 86 prescribes that an employee should receive one week's
notice before dismissal after one month's work, two weeks' notice after two years' work, and so forth
up to twelve weeks for twelve years. The employer can give payment of the weeks' wages instead of
giving notice. Another important express term that may be broken could be the proper disciplinary
procedure for disputes at work. If a contractual disciplinary procedure is not followed, the employee
may claim damages for the time it would have taken and the potential that she would still be
employed.
[237]

The requirements of notice and any disciplinary procedure do not apply if the employee was the one
to have repudiated the contract, either expressly, or by conduct. As in the general law of contract, if
an employee's conduct is so seriously bad that it manifests to the reasonable person an intention to
not be bound, then the employer may dismiss the employee without notice. But if the employer is not
justified in making a summary dismissal, the employee has a claim under ERA 1996 section 13 for a
shortfall in wages. The same principle, that a serious breach of contract gives the other side the
option to terminate,
[238]
also works in favour of employees. In Wilson v Racher
[239]
a gardener was
bullied by his employer, the heir ofTolethorpe Hall, and gave him a rude telling off for not picking up
some string on the lawn. Mr Wilson, the gardener, told Mr Racher "get stuffed, go and shit yourself".
The Court of Appeal held that the employer's attitude meant this breakdown in trust and confidence
was his own doing, and because labour law no longer saw employment as a "czar-serf" relationship,
Mr Wilson was in the right and was wrongfully dismissed. The remedy for breach of contract,
following a long tradition thatspecific performance should not result in draconian consequences or
binding hostile parties to continue working together,
[240]
is typically monetary compensation to put the
claimant in the same position as if the contract had been properly performed.
The primary implied term that may be broken is mutual trust and confidence. In Johnson v Unisys
Ltd
[241]
the House of Lords held by 4 to 1 that damages for breach of mutual trust and confidence at
the point of dismissal should not exceed the statutory limit on unfair dismissal claims, because
otherwise the statutory limits (63,500 in 2010) would be undermined. This meant a computer
worker who became psychiatrically ill following a wrongful dismissal procedure could not claim the
400,000 at which damages could otherwise be quantified. However, if the breach occurs while the
employment relationship subsists, that limit is inapplicable. So in Eastwood v Magnox Electric
plc,
[242]
a school teacher who also suffered psychiatric injury, but as a result of harassment and
victimisation while he still worked, could claim for a full measure of damages for the breach of mutual
trust and confidence. In any event the limit is merely implied and depends on construction of the
contract, so that it may be opted out of by express words providing for a higher sum, for example, by
expressly providing for a disciplinary procedure.
[243]
A notable absence of an implied term at
common law historically (i.e. before the development of mutual trust and confidence
[244]
) was that an
employer would have to give any good reasons for a dismissal.
[245]
This was recommended to be
changed in the Donovan Report 1968, and it launched the present system of unfair dismissal.
Unfair dismissal[edit]
[show]
V
T
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Unfair dismissal cases

Main article: Unfair dismissal
In contrast to "wrongful" dismissal, which is an action for unjustified breach of the terms of an
employment contract, "unfair" dismissal is a claim based in the Employment Rights Act 1996sections
94 to 134A that governs the reasons for which a contract is terminated. The Industrial Relations Act
1971, following the Donovan Report 1968, set up its structure.
[246]
Under ERA 1996 section 94 any
employee who is employed for over one year
[247]
may claim for an Employment Tribunal (composed
of a judge, an employer and an employee representative) to review the decision of their dismissal,
and get a remedy if the dismissal was not "fair" within the meaning of the Act. An employee is only
"dismissed" if the employer has decided to end the work relationship, or if they have constructively
dismissed the employee through a serious breach of mutual trust and confidence. In Kwik-Fit (GB)
Ltd v Lineham
[248]
Mr Lineham used the toilet at work after drinking at the pub, and in response to the
manager rebuking him in front of other staff, he threw down his keys and drove off. He claimed he
was dismissed, and the Tribunal agreed that at no time had Mr Lineham resigned. By contrast
in Western Excavating (ECC) Ltd v Sharp
[249]
Mr Sharp walked off because the company welfare
officer refused to let him collect holiday pay immediately. Although Mr Sharp was in financial
difficulty, this was due to his absences, and so he was not justified in leaving, and not constructively
dismissed.
[250]
An employee is also not dismissed if the relationship is frustrated. In Notcutt v
Universal Equipment Co (London) Ltd
[251]
a man's heart attack meant he could no longer work. The
employer paid no wages during the ordinary notice period, but was successful in arguing that the
contract was impossible to perform and therefore void. This doctrine, applicable as a default rule in
general contract law, is controversial since unlike commercial parties it will be rare that an employee
has the foresight or ability to contract around the rule.
[252]

Once it is established that a dismissal took place, the employer must show that their reason for
dismissing the employee was "fair". Dismissal on grounds of union membership,
[253]
or any protected
characteristic in the Equality Act 2010, will be automatically unfair. Otherwise the employer has the
opportunity to show the dismissal is fair if it falls within five main categories listed in ERA
1996 section 98.
[254]
The dismissal must have been because of the employee's capability or
qualifications, conduct, because the employee was redundant, because continued employment
would contravene a law, or "some other substantial reason". If the employer has an argument based
on one of these categories, then the tribunal evaluates whether the employer's actual decision fell
within a "reasonable range of responses", i.e. that a reasonable employer could have acted the
same way.
[255]
Thus the review standard lies in between an outright perversity, or
"Wednesbury unreasonableness" test and a forthright reasonable person test. It gives employers
considerable latitude in the way they manage their workforce, as the Tribunal's job is not to
substitute what it believes would have been fair, but only to intervene if a decision was arbitrary,
harsh or contrary to acceptable business practice.
[256]
There is also considerable room for Tribunals
to assess the facts and come to their own conclusions, which can only be appealed on legal
grounds, and not on their judgment of good workplace relations. For example, in a conduct
case, HSBC Bank plc v Madden,
[257]
the Court of Appeal held that it was acceptable for a Tribunal to
have decided that dismissing an employee for potential involvement in theft of credit cards was fair,
even though an actual police investigation turned up no evidence.
[258]
By contrast, in Bowater v
Northwest London Hospitals NHS Trust,
[259]
an employer argued a nurse who, while physically
restraining a naked patient, said "It's been a few months since I have been in this position with a
man underneath me" was lewd and deserved dismissal for her misconduct. The Tribunal said the
dismissal was unfair and the Court of Appeal held the Tribunal had competently exercised its
discretion in granting the unfair dismissal claim.


ACAS, headquartered at Euston Tower, issues a binding Code of Practice on how to handle workplace disputes and
potential dismissals.
Partly because the courts take a deferential approach to the employer's substantive reasons for
dismissal, they emphasise the importance of employers having a fair process. The Advisory,
Conciliation and Arbitration Service Code of Practice (2009) explains that good industry practice for
disciplinaries requires, among other things, written warnings, a fair hearing by people who have no
reason to side against the employee, or with any manager involved in the dispute, and the
opportunity for union representation. Often a company handbook will include its own system, which if
not followed will likely mean the dismissal was unfair.
[260]
Nevertheless, in Polkey v AE Dayton
Services Ltd
[261]
the House of Lords held that, in a case where a van driver was told he was
redundant on the spot, if an employer can show the dismissal would be made regardless of whether
a procedure was followed, damages can be reduced to zero. In the Employment Act 2002,
Parliament made an abortive attempt to instil some kind of mandatory minimum procedure for
everybody, but after complaints from unions and employers alike that it was merely encouraging a
"tick-box" culture, it was repealed in theEmployment Act 2008.
[262]
Now if the ACAS Code is not
followed, and this is unreasonable, an unfair dismissal award can be increased by 25 per
cent.
[263]
Generally, under ERA 1996 sections 119 and 227, the principle for a "basic" unfair
dismissal award is that, with a cap of 350 per week and a maximum of 20 weeks, an employee
should receive one week's pay for each year employed if aged between 22 and 40, 1 weeks if over
40 and a week if under 22. By ERA 1996 section 123, the employee may also be entitled to a
discretionary "compensatory" award, which should take into account the actual losses of the
employee as just and equitable, based on loss of immediate and future wages, the manner of the
dismissal and loss of future unfair dismissal protection and redundancy rights.
[264]
This is capped, but
usually increased in line with RPIinflation, and in 2010 stood at 63,500. Much lower, the median
award for unfair dismissal, without any element of discrimination, was 4903 in 20092010.
[265]

Redundancy[edit]
[show]
V
T
E
Redundancy cases

See also: Unfair dismissal and Layoff
An economic dismissal because of redundancy is a "fair" reason, but one that triggers a minimum
statutory right to a redundancy payment. Under ERA 1996 section 162, a redundant employee who
has been employed for over two years is entitled to one week's wages per year worked if aged
between 22 and 40, one and a half weeks' pay if over 40 and half a week's pay if under 22. The
upper limit is 240 per week. The meaning of redundancy under ERA 1996 section 139 is that
diminished demand for the employee's labour was the reason for the dismissal.
[266]
In situations
where employees have lost their jobs, this may be straightforward. In cases where an employer uses
its discretion practically to worsen the employees' position the answer may depend on the
employees' contracts. In Lesney Products & Co v Nolan
[267]
a toy company stopped giving its
workers overtime. Some refused to work further, they were dismissed, and they claimed they were
redundant. Lord Denning MR held they were not, because "nothing should be done to impair the
ability of employers to reorganise their work force and their times and conditions of work so as to
improve efficiency." Other courts have suggested the contract terms are irrelevant, and that the test
should be purely based on the economic reality of diminished demand.
[268]
If an employee is not
dismissed for redundancy it may be that the dismissal falls within the "fair" ground of "some other
substantial reason". In Hollister v National Farmers Union
[269]
a farmer's refusal to accept decreased
pension entitlements, after a consultation process, was a "substantial" reason for dismissal. Provided
employers give proper notice and have the right to terminate the contract by consent, it is possible to
worsen terms without the employee being able to claim redundancy.


Employees of over 2 years who are made redundant must receive aseverance payment to cushion them in
the search for their next job.
When compulsory redundancies are unavoidable and the employer must select among a group of
workers, the procedure the employer follows must be procedurally fair, or the workforce will have an
unfair dismissal claim. In Williams v Compair Maxam Ltd
[270]
Browne-Wilkinson J held that, in
response to managers who had selected workers to lose their jobs based on personal preference,
the proper steps should be to (1) give all warning possible (2) consult the union (3) agree objective
criteria (4) follow those criteria, and (5) always check there if there is alternative employment rather
than dismissal. Under ERA 1996 section 141 an employee should accept a reasonable offer for
redeployment, and will lose entitlement to redundancy if she declines it. The Collective
Redundancies Directive,
[271]
implemented in TULRCA 1992 section 188 also requires collective
consultation with the union or other elected workforce representatives. If the employer fails to consult
in good time it will be liable to pay a protective award to its staff.
Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 (EAT)
United States of America v Nolan [2011] IRLR 84
Business transfers and insolvency[edit]
See also: Mergers and acquisitions in United Kingdom law and UK insolvency law
[show]
V
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Business transfer sources

Another context in which the common law left workers particularly vulnerable was where the
business for which they worked was transferred between one person and another. In Nokes v
Doncaster Amalgamated Collieries Ltd
[272]
it was held (albeit to protect the worker from draconian
sanctions in the arcane Employers and Workmen Act 1875) that an employment contract could not
transfer without the consent of the parties involved. Consequently, in a situation where company A
sold its assets (including contracts) to company B, the employment relationship would sever and the
only claim a worker would have for dismissal would be against company A. Particularly from the
1950s, the view was increasingly accepted across Europe that workers have something more than a
personal right, and akin to a property right in their jobs.
[273]
Just as the transfer of a freehold property
between two landlords would not mean that a tenant could be evicted,
[274]
the first Business
Transfers Directive, passed in 1978 and updated in 2001 (often still referred to as the "Acquired
Rights Directive"), required that a business transferee would have to provide a good economic,
technical or organisational reason if they were either to not retain all previous employees, or wanted
to make detrimental variations to their workers' contracts. This means that the new employer who is
a transferee of a business through an asset sale is in no better position than would be a new owner
who gained control of a business by buying out a company's shares: contractual variations require
the employees' consent and dismissal rights remain as if it were the old employer. As implemented
by the Transfer of Undertakings (Protection of Employment) Regulations 2006, a clear example
where employees contracts transfer was in Litster v Forth Dry Dock.
[275]
The House of Lords held that
a purposive interpretation is to be given to the legislation so that where 12 dockworkers were sacked
an hour before a business sale, their contracts remained in effect if the employees would still be
there in absence of an unfair dismissal. This does not, however, mean that employees unfairly
dismissed before a sale have a right to their jobs back, because national law's normal remedy
remains with a preference for damages over specific performance.
[276]
The same principle goes for
any variation that works to the detriment of the employee. So the transferee employer may not
(without a good business reason) for example, try to impose a single new gardening clause
[277]
or
withdraw tenure, or the employee will have a claim for constructive dismissal.
[278]

An acute question for the TUPE Regulations, particularly in the years when the Conservative
government was implementing a policy of shrinking the size of the public sector, was the extent they
applied to jobs being outsourced, typically by a public body, like a local council, or changed between
businesses in a competitive tender process for public procurement. On this point a series
of ECJ decisions came to the view that there could be a relevant transfer, covered by the Directive,
even where there was no contractual link between a transferor and a transferee business,
[279]
so
long as the business entity retained its "identity". In turn the "identity" of a business would be
determined by the degree to which the business' factors of production remained the same before
and after a sale.
[280]
It could be that no employees were hired after an asset sale, but the sacked
employees would still have a claim because all their old workplace and capital equipment was being
used by the new employer. It is also relevant to what extent a business is capital or labour-intensive.
So in Oy Liikenne Ab v Liskojrvi
[281]
the ECJ held that it was unlikely that 45 Helsinki bus drivers'
contracts were transferred, between the company that lost the contract and the new bus company
that won it, even though 33 drivers were rehired, because "bus transport cannot be regarded as an
activity based essentially on manpower". On the other hand, employees stand to benefit where a
new employer offers old staff their jobs, the intention to rehire makes it more likely the court will
deem there to be a transfer.
[282]

[show]
V
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E
Employees and insolvency

Often business transfers take place when a company has plunged into an insolvency procedure. If a
company enters liquidation, which aims to wind down the business and sell off the assets, TUPER
2006 regulation 8(7) states that the rules on transfer will not apply.
[283]
The main objective, however,
in an insolvency procedure particularly since the Cork Report and theEnterprise Act 2002, is to effect
rescues through the system of company administration. An administrator's task under theInsolvency
Act 1986 Schedule B1, paragraph 3, is either to rescue the company as a going concern, rescue the
business typically by finding a suitable buyer and thus save jobs, or as a last resort put the company
into liquidation. If employees are kept on after an administrator is appointed for more than 14 days,
under paragraph 99 the administrator becomes responsible for adopting their contracts. The liability
on contracts is limited to "wages and salaries".
[284]
This includes pay, holiday pay, sick pay and
occupational pension contributions, but has been held to not include compensation for unfair
dismissal cases,
[285]
wrongful dismissal,
[286]
or protective awards for failure to consult the workforce
before redundancies.
[287]
If the business rescue does ultimately fail, then such money due
employees achieves the status of "super priority" among different creditors' claims.
The Insolvency Act 1986 priority list
1. Fixed charge holders
2. Insolvency practitioner fees and expenses, s 176ZA
3. Preferential creditors, ss 40, 115, 175, 386 and Sch 6
4. Ring fenced fund for unsecured creditors, s 176Aand SI 2003/2097
5. Floating charge holders
6. Unsecured creditors, s 74(2)(f)
7. Interest on debts proved in winding up, s 189
8. Money due to a member under a contract to redeem or repurchase shares not completed before winding
up, CA 2006 s 735
9. Debts due to members under s 74(2)(f)
10. Repayment of residual interests to preference, and then ordinary shareholders.
Sources: Insolvency Act 1986 and Companies Act 2006
The priority list in insolvency sees creditors with fixed
security(typically banks) get paid first, preferential creditors
third, unsecured creditors up to a limit of 600,000
third, floating chargeholders (usually banks again) fourth,
remaining debts to unsecured creditors (in the unlikely
event that anything remains) fifth, "deferred debts"
(typically to company insiders) sixth, and shareholders
last.
[288]
Among the preferential creditors, the insolvency
practitioners' fees together with adopted contracts attain
super-priority. Otherwise, employees wages and pensions
still have preferential status, but only up to an 800 limit, a
figure which has remained unchanged since
1986.
[289]
Employees having priority among creditors, albeit
not above fixed security holders, dates back to
1897,
[290]
and is justified on the ground that employees are
particularly incapable, unlike banks, of diversifying their
risk, and forms one of the requirements in the
ILO Protection of Workers' Claims (Employer's Insolvency)
Convention.
[291]
Often this limited preference is not enough,
and can take a long time to realise. Reflecting
the Insolvency Protection Directive
[292]
under ERA
1996 section 166 any employee
[293]
may lodge a claim with
the National Insurance Fund for outstanding wages.
Under ERA 1996 section 182 the amount claimable is the
same as that for unfair dismissal (350 in 2010) for a limit
of 8 weeks. If an employee has been unpaid for a longer
period, she may choose the most beneficial 8
weeks.
[294]
The Pensions Act 2004 governs a separate
system for protecting pension claims, through the Pension
Protection Fund. This aims to fully insure all pension
claims.
[295]
Together with minimum redundancy payments,
the guarantees of wages form a meagre cushion which
requires more of a systematic supplementation when
people remain unemployed.
Unemployment[edit]
See also: Unemployment and Unemployment in the United
Kingdom


An Inland Revenue stamp from 1912 commemorating unemployment
insurance.


Unemployed men discuss the growing jobless rate in 1931.
Poor Law Amendment Act 1834 and Royal
Commission into the Operation of the Poor Laws 1832
National Insurance Act 1911 and National Insurance
Karl Marx, Das Kapital (1867) and reserve army of
labour
Unemployment Act 1934
Great Depression in the United Kingdom
White Paper, Employment Policy (May 1944) Cmd
6527
W Beveridge, Full Employment in a Free
Society (1944)
A W Phillips (1958) 'The Relation between
Unemployment and the Rate of Change of Money
Wage Rates in the United Kingdom, 18611957,
Economica
Supplementary Benefit, Statutory sick pay and Income
Support
Jobseekers Act 1995 (c 18) and Jobseeker's
Allowance and Jobcentre Plus
Jobseekers Act 1995 s 19, disparity in definitions on
misconduct
New Deal (United Kingdom)
Youth unemployment in the United Kingdom
Employment Act of 1946 and the HumphreyHawkins
Full Employment Act of 1978 in the United States,
and full employment
Automatic stabilisers, effective aggregate
demand, fiscal stimulus, natural rate of
unemployment
Public employment agency
Employment Agencies Act 1973
Jobcentre Plus
Income Support, means tested benefit for people on
low incomes
Severe Disablement Allowance replaced by Incapacity
benefit in 2001, replaced by Employment and Support
Allowance2008
Housing Benefit
Enforcement and tribunals[edit]
Employment tribunal
Employment Appeal Tribunal
Industrial Tribunals
Employment Rights (Dispute Resolution) Act 1998
Employment Act 2002
ACAS
Health and Safety Executive
Employment Agency Standards Inspectorate
Gangmasters Licensing Authority
Inland Revenue
Equality and Human Rights Commission
Under the Equality Act 2006,
[296]
a new Equality and
Human Rights Commission was established, subsuming
specialist bodies from before. Its role is in research,
promotion, raising awareness and enforcement of equality
standards. For lawyers, the most important work of
predecessors has been strategic litigation
[297]
(advising and
funding cases which could significantly advance the law)
and developing codes of best practice for employers to
use. Around 20,000 discrimination cases are brought each
year to UK tribunals.
International labour law[edit]
[show]
V
T
E
International labour cases

Main articles: International labour law and Private
international law
Since the industrial revolution the labour movement has
been concerned how economic globalisation would
weaken the bargaining power of workers, as their
employers could move to hire workers abroad without the
protection of the labour standards at
home.
[298]
Following World War One, the Treaty of
Versailles contained the first constitution of a
newInternational Labour Organisation founded on the
principle that "labour is not a commodity", and for the
reason that "peace can be established only if it is based
upon social justice".
[299]
The primary role of the ILO has
been to coordinate principles of international labour law by
issuing ILO Conventions, which codify labour laws on all
matters. Members of the ILO can voluntarily adopt and
ratify the conventions by enacting the rules in their
domestic law. For instance, the first Hours of Work
(Industry) Convention, 1919 requires a maximum of a 48
hour week, and has been ratified by 52 out of 185 member
states. The UK ultimately refused to ratify the Convention,
as did many current EU members states, although
the Working Time Directive adopts its principles, subject to
the individual opt-out.
[300]
The present constitution of the
ILO comes from theDeclaration of Philadelphia 1944, and
under the Declaration on Fundamental Principles and
Rights at Work 1998 classified eight conventions
[301]
as
core. Together these require freedom to join a union,
bargain collectively and take action (Conventions
Nos 87 and 98) abolition of forced labour (29 and 105)
abolition labour by children before the end of compulsory
school (138 and 182) and no discrimination at work
(Nos 100 and 111). Compliance with the core Conventions
is obligatory from the fact of membership, even if the
country has not ratified the Convention in question. To
ensure compliance, the ILO is limited to gathering evidence
and reporting on member states' progress, so that publicity
will put public and international pressure to reform the
laws. Global reports on core standards are produced
yearly, while individual reports on countries who have
ratified other Conventions are compiled on a bi-annual or
perhaps less frequent basis.


As one of the few international organisations with real enforcement
power through trade sanctions, theWTO has been the target for calls
by labour lawyers to incorporate global standards of the International
Labour Organisation
Because the ILOs enforcement and sanction mechanisms
are weak, there has been significant discussion about
incorporating labour standards in the World Trade
Organisation's operation, since its formation in 1994.
The WTO oversees, primarily, the General Agreement on
Tariffs and Trade which is a treaty aimed at reducing
customs, tariffs and other barriers to free import and export
of goods, services and capital between its 157 member
countries. Unlike for the ILO, if the WTO rules on trade are
contravened, member states who secure a judgment by
the Dispute Settlement procedures (effectively a judicial
process) may retaliate through trade sanctions. This could
include reimposition of targeted tariffs against the non-
compliant country. Proponents of an integrated approach
have called for a "social clause" to be inserted into the
GATT agreements, for example by amending article XX,
which gives an exception to the general trade barrier
reduction rules allowing imposition of sanctions for
breaches of human rights. An explicit reference to core
labour standards could allow action where a WTO member
state is found to be in breach of ILO standards. Opponents
argue that such an approach could backfire and undermine
labour rights, as a country's industries, and therefore its
workforce, are necessarily harmed but without any
guarantee that labour reform would take place.
Furthermore it was argued in the Singapore Ministerial
Declaration 1996 that "the comparative advantage of
countries, particularly low-age developing countries, must
in now way be put into question."
[302]
On this view,
countries ought to be able to take advantage of low wages
and poor conditions at work as a comparative advantage in
order to boost their exports. It is disputed that business will
relocate production to low wage countries from higher
wage countries such as the UK, because that choice is
said to depend on productivity of workers. However, the
view of many labour lawyers and economists remains that
more trade, when workers have weaker bargaining power
and less mobility, still allows business to opportunistically
take advantage of workers by moving production, and that
a coordinated multilateral approach with targeted
measures against specific exports is preferable.
[303]
While
the WTO has yet to incorporate labour rights into its
procedures for dispute settlements, many countries began
to make bilateral agreements that protected core labour
standards instead.
[304]
Moreover, in domestic tariff
regulations not yet touched by the WTO agreements,
countries have given preference to other countries who do
respect core labour rights, for example under the EU Tariff
Preference Regulation, articles 7 and 8.
[305]

While the debate over labour standards applied by the ILO
and the WTO seeks to balance standards with free
movement of capital globally, conflicts of laws (or private
international law) issues arise where workers move from
home to go abroad. If a worker from the UK performs part
of her job in other countries (a "peripatetic" worker) or if a
worker is engaged in the UK to work as an expatriate
abroad, an employer may seek to characterise the contract
of employment as being governed by other countries' laws,
where labour rights may be less favourable than at home.
In Lawson v Serco Ltd
[306]
three joined appeals went to
the House of Lords. Mr Lawson worked for a multinational
business on Ascension Island, a British territory as a
security guard. Mr Botham worked in Germany for the
Ministry of Defence. Mr Crofts, and his copilots, worked
mostly in the air for a Hong Kong airline, though his
contract stated he was based at Heathrow. All sought to
claim unfair dismissal, but their employers argued they
should not be covered by the territorial reach of
the Employment Rights Act 1996. Lord Hoffmann held that,
first, if workers are in Great Britain, they are covered.
Second, peripatetic workers like Mr Crofts would be
covered if they are ordinarily working in the UK, but that
this could take account of the company's basings policy.
Third, if workers were expatriate the general rule was they
would not be covered, but that exceptionally if there was a
"close connection" between the work and the UK they
would be covered. This meant that Lawson and Botham
would have claims, because both Lawson and Botham's
position was in a British enclave, which made a close
enough connection. Subsequent cases have emphasised
that the categories of expatriate worker who will
exceptionally be covered are not closed. So inDuncombe v
Secretary of State for Children, Schools and
Families
[307]
an employee of the UK government teaching
in EU schools could claim unfair dismissal because their
employer held their connection close to the UK. Then,
in Ravat v Halliburton Manufacturing and Services
Ltd
[308]
an employee in Libya, working for a German
company that was part of the American multinational oil
conglomerate Halliburton, was still covered by UK unfair
dismissal rights because he was given an assurance that
his contract would come under UK law. This established a
close connection. The result is that access to mandatory
employment rights mirrors the framework for contractual
claims under the EU Rome I Regulation article 8.
[309]
It is
also necessary that a UK court has jurisdiction to hear a
claim, which under the Brussels I Regulation article
19,
[310]
requires the worker habitually works in the UK, or
was engaged there. Both EU Regulations emphasise that
the rules should be applied with the purpose of protecting
the worker.
[311]

As well as having legal protection for workers rights, an
objective of trade unions has been to organise their
members across borders in the same way
that multinational corporations have organised their
production globally. In order to meet the balance of power
that comes from ability of businesses to dismiss workers or
relocate, unions have sought to take collective action and
strike internationally. However, this kind of coordination
was halted in the European Union in two decisions.
In Laval Ltd v Swedish Builders Union
[312]
a group of
Latvian workers were sent to a construction site in Sweden
on low pay. The local Swedish Union took industrial action
to make Laval Ltd sign up to the local collective agreement.
Under the Posted Workers Directive, article 3 lays down
minimum standards for workers being posted away from
home so that workers always receive at least the minimum
rights that they would have at home in case their place of
work has lower minimum rights. Article 3(7) goes on to say
that this "shall not prevent application of terms and
conditions of employment which are more favourable to
workers". Most people thought this meant that more
favourable conditions could be given than the minimum
(e.g. in Latvian law) by the host state's legislation or a
collective agreement. However, in an interpretation seen
as astonishing by many, the ECJ said that only
the posting state could raise standards beyond its
minimum for posted workers, and any attempt by
the host state, or a collective agreement (unless the
collective agreement is declared universal under article
3(8)) would be an infringement of the business' freedom to
provide services under TFEU article 56. This decision was
implicitly reversed by the European Union legislature in
the Rome I Regulation, which makes clear in recital 34 that
the host state may allow more favourable standards.
However, in The Rosella, the ECJ also held that a
blockade by theInternational Transport Workers
Federation against a business that was using
an Estonian flag of convenience (i.e. saying it was
operating under Estonian law to avoid labour standards of
Finland) infringed the business' right of free establishment
under TFEU article 49. The ECJ said that it recognised the
workers' "right to strike" in accordance with ILO Convention
87, but said that its use must be proportionately to the right
of the business' establishment. The result is that the
European Court of Justice's recent decisions create a
significant imbalance between the international freedom of
business, and that of labour, to bargain and take action to
defend their interests. For this reason it has been
questioned whether the ECJ's decisions were compatible
with fundamental human rights, particularly the freedom of
association guaranteed by article 11 of the European
Convention on Human Rights.
See also[edit]
Labour law
UK company law
UK public service law
United States labor law
Sherman Act of 1890 and Loewe v. Lawlor, 208 U.S.
274 (1908)
Clayton Antitrust Act of 1914, labour is not a
commodity
Norris La Guardia Act of 1932
National Labor Relations Act of 1935 (Wagner),
protecting the right to organise and collectively bargain
Fair Labor Standards Act of 1938, minimum wage and
overtime
Labor Management Relations Act of 1947, no
secondary action, closed shop, enforceable collective
agreements
Employment Act of 1946
Labor Management Reporting and Disclosure Act of
1959, union elections, fiduciary duties of leaders
Occupational Safety and Health Actof 1970, health and
safety and whistleblowing
Employee Retirement Income Security Act of 1974,
private pension minimum standards and fiduciary
duties
Federal Labor Relations Act of 1978, allowing public
sector unions
HumphreyHawkins Full Employment Act of 1978
Family and Medical Leave Act of 1993, 12 weeks
unpaid parental leave after 12 months work over 50
employees
Notes[edit]
1. Jump up^ See Office for National Statistics,
'Statistical Bulletin: Labour Market Statistics'
(September 2012) 1.
2. Jump up^ Northern Ireland has specific legislation
and is excluded from two primary statutes, the ERA
1996 s 244 andTULRCA 1992 s 301, but has mostly
analogous provisions and falls under most of the
other Acts and Regulations.
3. Jump up^ See KW Wedderburn, The Worker and
the Law (3rd edn Harmondsworth 1986) 6, referring
to a "floor of rights", andGisda Cyf v Barratt [2010]
UKSC 41, [37]
4. Jump up^ (1772) 20 State Tr 1
5. Jump up^ However, it was not until the Criminal
Justice Act 1948that penal servitude, forced labour
for prisoners, was abolished.
6. Jump up^ See Henry James Sumner Maine, Ancient
Law (1861)
7. Jump up^ See also, the Royal Commission on Trade
Unions (1867) Cmnd ???; Employers and Workmen
Act 1875.
8. Jump up^ [1892] AC 25
9. Jump up^ [1901] AC 426
10. Jump up^ Versailles Treaty 1919, Part XIII and Art
427
11. Jump up^ The Whitley Report was published by
the Ministry of Reconstruction, see Committee on
Relations between Employers and Employed, Final
Report (1918) Cmnd 9153; see also, Whitley
Committee, Interim Report on Joint Standing
Industrial Councils (1917) Cmnd 8606
12. Jump up^ See KD Ewing, 'The State and Industrial
Relations: 'Collective Laissez-Faire' Revisited' (1998)
5 Historical Studies in Industrial Relations 1.
13. Jump up^ S Webb and B Webb, Industrial
Democracy (Longmans 1902)
14. Jump up^ See Constantine v Imperial Hotels
Ltd [1944] KB 693.
15. Jump up^ See Nairn v The University Court of the
University of St Andrews (1907) 15 SLT 471, 473, per
Lord McLaren, it was "a principle of the unwritten
constitutional law of this country that men only were
entitled to take part in the election of representatives
to Parliament."
16. Jump up^ See the Race Relations Act 1965, RRA
1968 and RRA 1976; Charter v Race Relations
Board [1973] AC 868, 889, Lord Morris says "a new
guiding principle of fundamental and far-reaching
importance... In the terms decreed by Parliament, but
subject to the exceptions permitted by Parliament,
discrimination against a person of colour, race or
ethnic or national origins has become unlawful by the
law of England."
17. Jump up^ See the Equal Pay Act 1970, the Sex
Discrimination Act 1975, Disability Discrimination Act
1995, Employment Equality (Sexual Orientation)
Regulations 2003,Employment Equality (Religion or
Belief) Regulations 2003and the Employment
Equality (Age) Regulations 2006.
18. Jump up^ With the notable exception of the leading
case, Defrenne v Sabena (No 2) [1976] ECR 455 (C-
43/75)
19. Jump up^ See also Redundancy Payments Act
1965 and theEmployment Protection (Consolidation)
Act 1978.
20. Jump up^ Alan Bullock, Report of the committee of
inquiry on industrial democracy (1977) Cmnd 6706
21. Jump up^ Employment Act 1980 (trade union right
to government funds for ballots, narrowed picketting
immunity, reduced secondary action immunity,
unions right to expel members limited), Employment
Act 1982 (narrowed "trade dispute" definition), Trade
Union Act 1984 (secret ballots for union elections and
strikes), Public Order Act 1986 (set out offences
related to picketing, and increased police power over
groups of over 20 people), Wages Act
1986(deregulated restrictions on employers fining
and deducting money from employees' pay, removed
statutory holiday entitlement, reduced state funding
for redundancies),Employment Act 1988 (worker's
right to not join a union, trade union member's right to
challenge strike ballots),Employment Act
1989 (restricted trade union officials' time off for
duties, abolished the Training Commission, abolished
government support for redundancy
payments),Employment Act 1990 (removing closed
shop and secondary action protection), TULRCA
1992 (consolidated legislation hitherto), Trade Union
Reform and Employment Rights Act 1993 (trade
union duty to inform employers of upcoming strikes)
22. Jump up^ Gisda Cyf v Barratt [2010] UKSC 41
23. Jump up^ Gisda Cyf v Barratt [2010] UKSC 41
24. Jump up^ https://www.gov.uk/national-minimum-
wage-rates
25. Jump up^ NMWA 1998 s 54; WTR 1998 rr 13-
14; PA 2008 s 3;Equality Act 2010
26. Jump up^ HSAWA 1975 s 2; ERA 1996 ss 1, 71-80I,
86, 94 and 135; SSCBA 1992 ss 1-2
27. Jump up^ See particularly ERA 1996 s 230
28. Jump up^ Malik v BCCI SA
29. Jump up^ Lawrie-Blum v Land Baden-
Wrttemberg (1986) Case 66/85, [1986] ECR
2121; Steymann v Staatssecretaris van
Justitie (1988) Case 196/87, [1988] ECR
6159; Pfeiffer v Deutsches Kreuz, Kreisverband
Waldshut eV (2005) C-397/01, [2005] IRLR 137
30. Jump up^ See S Webb and B Webb, Industrial
Democracy (1897) and O Kahn-Freund, Labour and
the Law (Hamlyn Lectures 1972)
31. Jump up^ ERA 1999 s 23
32. Jump up^ Yewens v Noakes (1880) 6 QBD 530; R v
Negus (1873) LR 2 CP 34
33. Jump up^ See National Insurance Act 1946 s 1(2)
34. Jump up^ Cassidy v Minister of Health [1951] 2 KB
343, Stevenson, Jordan & Harrison v MacDonald v
Evans [1952] 1 TLR 101,Bank voor Handel en
Scheepvaart NV v Slatford [1953] 1 QB 248, 295,
Denning LJ, It depends on whether the person is part
and parcel of the organisation.
35. Jump up^ Montreal v Montreal Locomotive Works
[1947] 1 DLR 161, 169, per Lord Wright, and Ready
Mixed Concrete (South East) Ltd v Minister for
Pensions and National Insurance [1968] 2 QB 497,
515, per MacKenna J
36. Jump up^ Nethermere (St Neots) Ltd v
Gardiner [1984] IRLR 240,Dacas v Brook Street
Bureau (UK) Ltd [2004] EWCA Civ 217
37. Jump up^ OKelly v Trusthouse Forte plc [1983] ICR
730, [1983] IRLR 369 and James v Greenwich LBC.
This appeared to derive from M Freedland, The
Contract of Employment(1976) 21-22 and first used
in Airfix Footwear Ltd v Cope[1978] ICR 1210
38. Jump up^ Following Johnson v Unisys Ltd [2001]
IRLR 279, [20] Lord Steyn, It is no longer right to
equate a contract of employment with commercial
contracts. One possible way of describing a contract
of employment in modern terms is as a relational
contract.
39. Jump up^ cf Massey v Crown Life Insurance
Company [1977]EWCA Civ 12
40. Jump up^ [2010] UKSC 41, [39]
41. Jump up^ ERA 1996 s 1
42. Jump up^ e.g. French v Barclays Bank plc [1998]
IRLR 646
43. Jump up^ Harlow v Artemis International Corp
Ltd [2008] EWHC 1126 (QB), [2008] IRLR 629
44. Jump up^ TULRCA 1992 s 179
45. Jump up^ Contrast Alexander and Wall v Standard
Telephones & Cables Ltd (No 2) [1991] IRLR 287
and Kaur v MG Rover Group Ltd [2004] EWCA 1507
46. Jump up^ See Attorney General of Belize v Belize
Telecom Ltd[2009] UKPC 10
47. Jump up^ Wilsons and Clyde Coal Ltd v
English [1938] AC 57 andJohnstone v Bloomsbury
Health Authority [1991] 2 All ER 293
48. Jump up^ Devonald v Rosser & Sons [1906] 2 KB
728
49. Jump up^ Scally v Southern Health and Social
Services Board[1992] 1 AC 294
50. Jump up^ Crossley v Faithful & Gould Holdings
Ltd [2004] EWCA Civ 293
51. Jump up^ Wilson v Racher [1974] ICR 428
52. Jump up^ The Post Office v Roberts [1980] IRLR
347
53. Jump up^ Transco plc v OBrien [2002] EWCA Civ
379
54. Jump up^ Mahmud and Malik v Bank of Credit and
Commerce International SA [1998] AC 20
55. Jump up^ Mallone v BPB Industries plc [2002]
EWCA Civ 126
56. Jump up^ Contrast Lord Steyn in Mahmud and Malik
v Bank of Credit and Commerce International
SA [1998] AC 20 and Lord Browne-Wilkinson VC
in Johnstone v Bloomsbury Health Authority [1991] 2
All ER 293
57. Jump up^ e.g. Cresswell v Board of Inland
Revenue [1984] ICR 508
58. Jump up^ Rigby v Ferodo Ltd [1988] ICR 29
59. Jump up^ Robertson v British Gas Corp [1983] ICR
351
60. Jump up^ e.g. Bateman v Asda Stores Ltd [2010]
IRLR 370
61. Jump up^ Wandsworth London Borough Council v
DSilva [1998] IRLR 193
62. Jump up^ Factories Act 1961
63. Jump up^ Health and Safety Directive 89/391/EEC
64. Jump up^ See Franklin v South Eastern
Railway (1858) 3 H&N 211 and Fatal Accidents Act
1976
65. Jump up^ See Turberville v Stampe (1697) 91 ER
1072 and Lister v Hesley Hall Ltd [2001] UKHL 22,
[2002] 1 AC 215
66. Jump up^ See Morris v Ford Motor Co Ltd [1973]
QB 792, 799 andWilliams v Natural Life Health Foods
Ltd [1998] UKHL 17
67. Jump up^ e.g. Priestly v Fowler (1837) 3 Mees &
Wels 1
68. Jump up^ [1938] AC 57
69. Jump up^ e.g. Woodley v Metropolitan District
Railway Co (1877) 2 Ex D 384, overturned in Smith v
Baker [1891] AC 325 andBowater v Mayor, Aldermen
and Burgesses of the Borough of Rowley
Regis [1944] KB 476
70. Jump up^ [1965] AC 656
71. Jump up^ See Law Reform (Contributory
Negligence) Act 1945 s 1
72. Jump up^ [2002] EWCA Civ 1821
73. Jump up^ [2002] UKHL 22. See also McGhee v
National Coal Board [1972] 3 All ER 1008
74. Jump up^ [2006] UKHL 20
75. Jump up^ [2011] EWHC 951 (QB)
76. Jump up^ There are also proposals circulating
moving towards setting principles resembling a
"maximum wage", seeFinancial Services
Authority pay code
77. Jump up^ ERA 1996 s 14
78. Jump up^ Miles v Wakefield Metropolitan District
Council [1987] AC 539. See also, Wiluszynski v
London Borough of Tower Hamlets [1989] ICR 439
79. Jump up^ See also S Webb, The Economic Theory
of a Legal Minimum Wage (1912) 20(10) The Journal
of Political Economy 973-998
80. Jump up^ See Trade Union Reform and
Employment Relations Act 1993
81. Jump up^ See Universal Declaration of Human
Rights art 23(3),European Social Charter 1961 art 4,
ILO Minimum Wage Fixing Convention, No 131
(1970), European Community Charter of
Fundamental Social Rights 1989 art 5
82. Jump up^ See NMWA 1998 s 54(3), ERA 1996 s
230 and James v Redcats (Brands) Ltd [2007] IRLR
296 (EAT). NMWA 1998s 34 expressly including
agency workers, though NMWR 1999 r 12, excludes
au pairs and family members in family business and r
26 allows adults in the first 26 weeks of accredited
training can be paid at a lower rate.
83. Jump up^ [2000] QB 501
84. Jump up^ Press Association, 'Minimum wage to rise
by 15p' (7 April 2011) The Guardian
85. Jump up^ SI 1999/584
86. Jump up^ NMWR 1999 r 10
87. Jump up^ See Scottbridge Construction Ltd v
Wright [2002] ScotCS 285, but then NMWR 1999 r
15(1A) says that a worker given suitable sleeping
facilities is not doing work when not awake for the
purpose of working
88. Jump up^ McCartney v Oversley House
Management [2006] IRLR 514 (EAT)
89. Jump up^ [2003] EWCA Civ 199, [2003] IRLR 469
90. Jump up^ See NMWR 1999 rr 31 and 36
and Leisure Employment Services Ltd v HM Revenue
& Customs [2007] EWCA Civ 92, [2007] ICR 1056. SI
2009/1902 r 5 removed an exception for tips paid
through the payroll previously found in NMWR 1999 r
31.
91. Jump up^ NMWA 1998 ss 17-18
92. Jump up^ NMWA 1998 ss 10 and 23-25
93. Jump up^ NMWA 1998 ss 14, 19 and 20. See also
theEmployment Act 2008
94. Jump up^ NMWA 1998 ss 11 and 21
95. Jump up^ Social Security Contributions and Benefits
Act 1992 s 167
96. Jump up^ 2003/88/EC, replacing 93/104/EC
97. Jump up^ See Universal Declaration of Human
Rights art 24, Everyone has the right to rest and
leisure, including reasonable limitation of working
hours and periodic holidays with pay. Also, ILO
Convention on Holidays with Pay, No 52 (1936)
98. Jump up^ WTD 2003 art 7 and WTR 1998 rr 13-16.
SI 2007/2079 r 2 updated the period to 28 days,
expressed often as 5.6 weeks, if one takes "week" to
mean a five day working week.
99. Jump up^ See R (BECTU) v DTI (2001) C-173/99,
[2001] 3 CMLR 7, ruling that the UK's initial 13 week
qualifying period was 'manifestly incompatible' with
the Directive.
100. Jump up^ Accordingly the WTD 2003 was
passed under the authority of TFEU art 153(1)(a)
101. Jump up^ See Caulfield v Marshalls Clay
Products (2006) C-131/04, [2006] IRLR 386. It is also
the case that a worker who is off work for a long term
illness is still entitled to holiday pay,Stringer v
HMRC and Schultz-Hoff v Deutsche
Rentenversicherung Bund [2009] UKHL 31, [2009]
IRLR 214, also, C-520/06 and C-350/06
102. Jump up^ WTD 2003 arts 8-13 and WTR
1998 rr 2-7
103. Jump up^ Commission v United
Kingdom (2006) C-484/04, [2006] IRLR 888 held the
employer is under an obligation to ensure the breaks
are actually observed.
104. Jump up^ See Pfeiffer v Deutsches Kreuz,
Kreisverband Waldshut eV (2005) C-397/01, [2005]
IRLR 137
105. Jump up^ WTD 2003 art 22, WTR 1998 rr 4-5
106. Jump up^ See Fu v Stadt Halle [2010] IRLR
1080, reducing pay after requesting to move to
reduced hours is victimisation.
107. Jump up^ WTR 1998 r 4(3)(b)
108. Jump up^ See SIMAP v Conselleria de Sanidad
y Consumo de la Generalidad Valenciana (2000) C-
303/98, [2000] ECR I-7963
109. Jump up^ (2003) C-151/02, [2003] ECR I-
08389
110. Jump up^ 92/85/EEC
111. Jump up^ Work and Families Act 2006 (c 18)
abolished the qualification period for ordinary and
additional maternity leave.
112. Jump up^ MPLR 1999 (SI 1999/3312) r 8
113. Jump up^ Boyle v Equal Opportunities
Commission (1998) C-411/96, [1998] ECR I-6401
114. Jump up^ ERA 1996 ss 72-73 and MPLR
1999 rr 7-8
115. Jump up^ Social Security Contributions and
Benefits Act 1992 s 167
116. Jump up^ MPLR 1999 rr 17-20
117. Jump up^ APLR 2010 (SI 2010/1055)
118. Jump up^ PALR 2002 SI 2002/2788 r 6; See
also Statutory Paternity Pay and Statutory Adoption
Pay (General) Regulations 2002 (SI 2002/2822)
119. Jump up^ 96/34/EC
120. Jump up^ MPLR 1999 rr 13-15
121. Jump up^ MPLR 1999 r 16 and Sch 2
122. Jump up^ MPLR 1999 rr 17-20
123. Jump up^ [2003] IRLR 184 (EAT)
124. Jump up^ ERA 1996 s 80H
125. Jump up^ [2006] IRLR 171 (EAT)
126. Jump up^ See Flexible Working (Eligibility,
Complaints and Remedies) Regulations 2002 r 7 (SI
2002/3236)
127. Jump up^ See Pension Schemes Act 1993 s 1
and the Social Security Contributions and Benefits
Act 1992
128. Jump up^ Pensions Act 2008 ss 1, 13 and
88(3)
129. Jump up^ PA 2008 ss 3 and 16
130. Jump up^ See PA 2008 Sch 1
131. Jump up^ See I Adams, Fewer than half of
Britons save for pension, says survey (3 April
2010) The Guardian, 35
132. Jump up^ Scally v Southern Health and Social
Services Board[1992] 1 AC 294
133. Jump up^ Bilka-Kaufhaus GmbH v Weber von
Hartz (1986) C-170/84, [1986] IRLR 317; Barber v
Guardian Royal Exchange Assurance Group (1990)
C-262/88, [1990] IRLR 240
134. Jump up^ PA 2004 ss 241-242
135. Jump up^ PA 2004 s 243
136. Jump up^ See Harries v The Church
Commissioners for England[1992] 1 WLR 1241
137. Jump up^ See Pensions Act
2008 and Pensions Act 2004 ss 241-243
138. Jump up^ Pensions Act 2004 ss 221-233
139. Jump up^ Pensions Act 2004 ss 13-32
140. Jump up^ Pension Schemes Act 1993, s 163
141. Jump up^ cf TULRCA 1992 s 1
142. Jump up^ ERA 1996 ss 98 and 135
143. Jump up^ TULRCA 1992 s 219
144. Jump up^ See Equitable Life Assurance
Society v Hyman [2000]UKHL 39 and AG of Belize v
Belize Telecom Ltd [2009]UKPC 10
145. Jump up^ AB v CD [2001] IRLR 808. See
also, Breen v Amalgamated Engineering
Union [1971] 2 QB 175, where the dissenting
judgment of Lord Denning MR is probably an
accurate reflection of the law after Hyman and Belize
146. Jump up^ See Foss v Harbottle (1843) 67 ER
189
147. Jump up^ [1950] 2 All ER 1064
148. Jump up^ E McGaughey, 'British
Codetermination and the Churchillian Circle'
(2014) UCL Labour Rights Institute On-Line Working
Papers LRI WP 2/2014
149. Jump up^ See the South Metropolitan Gas Act
1896 s 19, Port of London Act 1908 s 1(7), Iron and
Steel Act 1967, Sch 4, Part V, Aircraft and
Shipbuilding Industries Act 1977 s 2(8),Post Office
Act 1977 s 1
150. Jump up^ Further and Higher Education Act
1992, ss 20(2) and 85, and Sch 4, para 4
151. Jump up^ See M Weiss (ed) et al, Handbook
on employee involvement in Europe (Kluwer 2004).
For the most developed example, see in German
labour law theMitbestimmungsgesetz 1976 and
theBetriebsverfassungsgesetz 1972 87. Member
states with no participation rights are Belgium,
Cyprus, Estonia, Italy, Latvia, Lithuania, Romania
and the United Kingdom.
152. Jump up^ See Employee Involvement
Directive 2001/86/EC
153. Jump up^ See generally, PL Davies, 'Workers
on the Board of the European Company?'
(2003) 32(2) Industrial Law Journal 75
154. Jump up^ (1977) Cmnd 6706; see also Lord
Donovan, Report of the Royal Commission on Trade
Unions and Employers Associations (19651968)
Cmnd 3623, 997-1006, where the minority
favoured worker directors in principle.
155. Jump up^ See KW Wedderburn, 'Employees,
Partnership and Company Law' [2002] 31(2)
Industrial Law Journal 99, a minor duty that could not
be legally enforced was CA 1985s 309, requiring
directors to act in shareholders and employees'
interests, now reflected in CA 2006 s 172
156. Jump up^ See Information and Consultation of
Employees Regulations 2004 (SI 3426/2004),
implementing EU Directive 2002/14/EC
157. Jump up^ RMT v UK [2014] ECHR 366
158. Jump up^ B Gernigo, A Odero and H Guido,
'ILO Principles Concerning the Right to Strike' (1998)
137 International Labour Review 441
159. Jump up^ [1892] AC 25
160. Jump up^ [1942] AC 435
161. Jump up^ See also Morgan v Fry [1968] 2 QB
710, Lord Denning MR says there has been a right to
strike in the UK for over 60 years provided proper
notice is given. See also London Underground Ltd v
RMT [1996] ICR 170, 181, per Millett LJ
162. Jump up^ [1901] UKHL 1, [1901] AC 426
163. Jump up^ See also South Wales Miners
Federation v Glamorgan Coal Co [1905] AC 239
164. Jump up^ [1964] UKHL 1, [1964] AC 1129
165. Jump up^ See also Metrobus Ltd v
Unite [2009] EWCA Civ 2009
166. Jump up^ eg R v Mawbey (1796) 6 Term Rep
619, 101 ER 736, cfTimeplan Education Group Ltd v
NUT [1997] IRLR 457
167. Jump up^ Lumley v Gye (1853) 2 E&B 216
168. Jump up^ Tarleton v McGawley (1793) 1 Peake
270, 170 ER 153
169. Jump up^ Parliament had presumed a general
right to take collective action in pursuit of economic
interests (including enforcement of the closed shop
and solidarity action) since the Trade Union Act 1871.
However because of the Taff Vale case it became
necessary for Parliament to clarify the position in
the Trade Disputes Act 1906. This, and subsequent
legislation, did not however enact a positive right to
strike, meaning common law courts could develop
new heads that existing immunity did not cover.
170. Jump up^ This was introduced by
the Conspiracy and Protection of Property Act 1875
171. Jump up^ See Race Equality
Directive 2000/48/EC, for race;Employment Equality
Framework Directive 2000/78/EC, for religion, belief,
sexuality, disability and age; Equal Treatment
Directive 2006/54/EC, for gender.
172. Jump up^ TULRCA 1992 ss 146-166; ECHR art
11 and Wilson v United Kingdom [2002] ECHR 552
173. Jump up^ EA 2010 ss 4-14, 16, 18
174. Jump up^ PTWR 2000, FTER 2002, AWR 2010
175. Jump up^ cf European Convention on Human
Rights art 13
176. Jump up^ EA 2010 s 13
177. Jump up^ See James v Eastleigh BC [1990] 2
AC 751
178. Jump up^ R (European Roma Rights Centre) v
Immigration Officer at Prague Airport [2005] 2 WLR 1
179. Jump up^ [2003] UKHL 11, [2003] ICR 337
180. Jump up^ See also, Ladele v London Borough
of Islington [2009] EWCA Civ 1357, [39]
181. Jump up^ Equal Treatment
Directive 2000/78/EC art 10; Igen Ltd v Wong [2005]
ICR 931; Madarassy v Nomura International
Plc [2007] EWCA Civ 33, [2007] ICR 867
182. Jump up^ (2008) C-303/06, [2008] IRLR 722
183. Jump up^ [2008] EWCA Civ 1421
184. Jump up^ See Showboat Entertainment Centre
v Owens [1984] ICR 65, (EAT)
185. Jump up^ [2006] UKHL 34, [2006] ICR 1199
186. Jump up^ [2007] UKHL 16, [2007] ICR 841
187. Jump up^ [2001] ICR 1065
188. Jump up^ EA 2010 s 19
189. Jump up^ Ladele v Islington BC [2009] EWCA
Civ 1357, [60], per Lord Neuberger MR and Eweida v
British Airways plc [2010]EWCA Civ 80, [37], per
Sedley LJ. Both cases have sought appeal to
the European Court of Human Rights
190. Jump up^ (1986) C-170/84, [1986] ECR 1607
191. Jump up^ (1999) C-167/97, [2000] UKHL 12
192. Jump up^ See also, Equality Framework
Directive 2000/78/EC art 4
193. Jump up^ [1989] IRLR 150
194. Jump up^ Contrast the stricter approach to
policing, Johnston v Chief Constable of the Royal
Ulster Constabulary (1986) C-222/84, [1986] 5 ECR
1651
195. Jump up^ (1999) C-273/97, [1999] ECR I-7403
196. Jump up^ Contrast the ECJ's rejection of the
complete ban on non-interoperable forces in Kreil v
Germany (2000) C-285/98, [2000] ECR I-0069
197. Jump up^ R (Amicus) v Secretary of State for
Trade and Industry[2004] EWHC 860 (Admin), [2004]
IRLR 430
198. Jump up^ Compare the US decision in Griggs v
Duke Power Co, 401 US 424 (1971)
199. Jump up^ Bilka-Kaufhaus GmbH v Weber von
Hartz (1984) C-170/84, [1986] ECR 1607, concerning
a part time worker who was refused an occupational
pension.
200. Jump up^ Rinner-Khn v FWW Spezial-
Gebaudereinigung GmbH & Co KG (1989) C-171/88,
[1989] ECR 2743, concerning a part time worker who
did not get sick pay. Nimz v Freie und Hansestadt
Hamburg (1991) C-184/89, [1991] ECR I-297,
concerning a women part time worker who was paid
less than full time staff. Cf Handels-og
Kontorfunktionaerernes Forbund I Danmark v Dansk
Arbejdsgiverforening, acting on behalf of
Danfoss (1989) C-109/88, [1989] ECR 3199, where
criteria of being adaptable, prior training and seniority
in practice meant that women were being paid less.
Seniority was explicitly approved as a good reason.
201. Jump up^ Kutz-Bauer v Freie und Hansestadt
Hamburg (2003) C-187/00, [2003] ECR I-02741,
involving a German law subsidising employment for
men up to 65, and women only up to 60. Cf Allonby v
Accrington and Rossendale College(2001) C-256/01,
[2001] ICR 1189.
202. Jump up^ [1978] 1 WLR 1429, [1978] IRLR 361
203. Jump up^ [1987] IRLR 26
204. Jump up^ cf Allonby
205. Jump up^ (1992) C-127/92, [1993] IRLR 591
206. Jump up^ [1998] 1 WLR 259
207. Jump up^ Redcar and Cleveland BC v
Bainbridge [2007] EWCA Civ 929, [2008] ICR 238
208. Jump up^ Allen v GMB [2008] EWCA Civ 810,
[2008] IRLR 690
209. Jump up^ R (Carson and Reynolds) v
Secretary of State for Work and Pensions [2005]
UKHL 37, holding that the UK government could give
less money in income support
andjobseekers allowance for under 25s than over
25s. This may be of questionable compatibility
with Kutz-Bauer andKckdeveci v Swedex GmbH &
Co KG (2010) C-555/07, [2010] IRLR 346.
210. Jump up^ Palacios de la Villa v Cortefiel
Servicios SA (2007) C-411/05, [2007] IRLR 989
and R (Age Concern (England)) v Secretary of State
for Business Enterprise and Regulatory
Reform (2009) C-388/07, [2009] IRLR 373
211. Jump up^ (2006) C-13/05, [2006] IRLR 706
212. Jump up^ [2004] UKHL 32
213. Jump up^ [2007] EWCA Civ 283
214. Jump up^ See United Steelworkers of America
v Weber, 443 US 193 (1979)
215. Jump up^ cf Kalanke v Freie Hansestadt
Bremen (1995) C-450/93, [1995] IRLR 660, said
in Marschall to have been a case where the employer
failed to pay regard to individual qualities, by having
an automatic promotion policy for women if equally
qualified with male competitors.
216. Jump up^ (1996) C-409/95, [1996] ICR 45
217. Jump up^ (2000) C-407/98, [2000] ECR I-
05539
218. Jump up^ (2000) C-158/97, [2001] 2 CMLR 6
219. Jump up^ Part-time Workers
Directive 97/81/EC
220. Jump up^ 99/70/EC
221. Jump up^ Temporary and Agency Work
Directive 2008/104/EC
222. Jump up^ SI 2000/1551
223. Jump up^ See A McColgan, Missing The
Point? (2000) 29 ILJ 260, 267
224. Jump up^ [2006] UKHL 8
225. Jump up^ SI 2002/2034
226. Jump up^ See A McColgan, 'The Fixed Term
Employees (Prevention of Less Favourable
Treatment) Regulations 2002: Fiddling While Rome
Burns?' [2003] 32 ILJ 194
227. Jump up^ FTER 2002 rr 3-5
228. Jump up^ See Adeneler v Ellinikos Organismos
Galaktos [2006] IRLR 716 (C-212/04) on objective
justification for use of fixed-term contracts disclosing
a genuine need, and measures employed are
proportionate to that aim, and twenty days is too little
to break continuity.
229. Jump up^ See E McGaughey, 'Should Agency
Workers be Treated Differently?' (2010) SSRN
230. Jump up^ cf Dacas v Brook Street Bureau (UK)
Ltd [2004] EWCA Civ 21 and James v Greenwich
LBC [2008] EWCA Civ 35
231. Jump up^ SI 2003/3319
232. Jump up^ ILO Convention 158 (1982)
233. Jump up^ See the Collective Redundancies
Directive 98/59/EC andTULRCA 1992 ss 188-192
234. Jump up^ Gisda Cyf v Barratt [2010] UKSC 41.
See also Locke v Candy & Candy Ltd [2010] EWCA
Civ 1350and McClelland v Northern Ireland General
Health Services [1957] 1 WLR 594, where the House
of Lords by 3 to 2 held that even though a contract
had an express provision that women had to resign if
they got married, read in the "context" of another
provision on gross inefficiency it could not apply.
235. Jump up^ (1875-76) LR 1 CPD 591. See
also Payzu Ltd v Hannaford [1918] 2 KB 348. Power
and Savage v British India Steam Navigation Co
Ltd (1930) 36 Lloyds Law Reports 205
236. Jump up^ Nokes v Doncaster Collieries
Ltd [1940] AC 1014
237. Jump up^ Gunton v Richmond-Upon Thames
LBC [1980] ICR 755
238. Jump up^ See also Laws v London Chronicle
(Indicator Newspapers) Ltd [1959] 1 WLR 698,
holding that an employee's failure to obey an
employer's instruction was a breach of contract, but
not one serious enough to justify termination without
notice.
239. Jump up^ [1974] ICR 428
240. Jump up^ Contrast Jones v Gwent County
Council [1992] IRLR 521,Hill v CA Parsons & Co
Ltd [1972] Ch 305, Irani v Southampton and South
West Hampshire HA [1985] ICR 590 and Mezey v
South West London & St George's Mental Health
NHS Trust [2010] IRLR 512
241. Jump up^ [2003] 1 AC 518
242. Jump up^ [2004] UKHL 35, [2004] IRLR 732
243. Jump up^ Edwards v Chesterfield Royal
Hospital NHS Foundation Trust [2010] EWCA Civ
571, where failure to follow contractual disciplinary
procedure led to a surgeon losing his career.
244. Jump up^ Cf Reda v Flag Ltd [2002] UKPC 38,
[2002] IRLR 747, stating that an express term for
without cause removal cannot be overriden by an
implied term of good faith, thus suggesting a default
common law rule would require a good reason for
removal.
245. Jump up^ Ridge v Baldwin [1964] AC 40. See
also Malloch v Aberdeen Corporation [1971] 1 WLR
1578, 1581, where Lord Reid repeated: At common
law a master is not bound to hear his servant before
he dismisses him. He can act unreasonably or
capriciously if he so chooses but the dismissal is
valid. The servant has no remedy unless the
dismissal is in breach of contract and then the
servants only remedy is damages for breach of
contract. This echoes Addis v Gramophone Co
Ltd [1909] UKHL 1, [1909] AC 488.
246. Jump up^ See Report of the Royal Commission
on Trade Unions and Employers Associations (1968)
Cmnd 3623
247. Jump up^ ERA 1996 s 108. Under ERA 1996 s
212, a break in employment for a number of weeks,
or even a summer does not restart the clock for the 1
year qualifying period, see Ford v Warwickshire
CC [1983] ICR 273. Also, underERA 1996 s 97, if an
employer dismisses an employee one week before a
year is up without proper notice, the "effective date of
termination" will still be after the one year period and
so the employee will still qualify for unfair dismissal
rights.
248. Jump up^ [1992] ICR 183
249. Jump up^ [1978] ICR 221
250. Jump up^ See also Woods v WM Car Services
(Peterborough) Ltd[1982] ICR 693
251. Jump up^ [1986] ICR 414
252. Jump up^ See H Collins et al, Labour Law:
Cases and Materials(Hart 2005) 492
253. Jump up^ Wilson v United
Kingdom [2002] ECHR 552
254. Jump up^ See Abernethy v Mott, Hay and
Anderson [1974] ICR 323, [1974] IRLR 213
and Smith v Glasgow City District Council [1987] ICR
796, on the consequences of an employer failing to
identify a legitimate reason for dismissal.
255. Jump up^ See Iceland Frozen Foods Ltd v
Jones [1983] ICR 17, per Browne-Wilkinson J
256. Jump up^ cf Bolam v Friern Hospital
Management Committee[1957] 1 WLR 582 in English
tort law.
257. Jump up^ [2000] ICR 1283
258. Jump up^ cf Haddon v Van Den Bergh Foods
Ltd [1999] ICR 1150, where the outgoing President of
the Employment Appeal Tribunal, Morison J, held the
band of responses test was like a perversity test, and
a full reasonableness test was the law.
259. Jump up^ [2011] EWCA Civ 63
260. Jump up^ West Midlands Co-op v Tipton [1986]
AC 536, [1986] ICR 192
261. Jump up^ [1988] ICR 142
262. Jump up^ For an example of the operation of
EA 2002, which if not followed let to an automatic
finding of unfair dismissal, seeCartwright v Kings
College, London [2010] EWCA Civ 1146
263. Jump up^ TULRCA 1992 s 207A and Sch A2,
inserted byEmployment Act 2008 s 3
264. Jump up^ Norton Tool Co Ltd v Tewson [1972]
EW Misc 1
265. Jump up^ See Ministry of Justice, Employment
Tribunal and EAT statistics 2009-10 (3 September
2010)
266. Jump up^ Murray v Foyle Meats Lead [1999]
ICR 827
267. Jump up^ [1977] ICR 235
268. Jump up^ Safeway Stores plc v Burrell [1997]
ICR 523
269. Jump up^ [1979] ICR 542
270. Jump up^ [1982] ICR 156
271. Jump up^ 98/59/EC
272. Jump up^ [1940] AC 1014
273. Jump up^ The French Code du Travail of 1928
contained the forerunner, now found in Code du
Travail article L 122-12. See also, E Herz, The
Protection of Employees on the Termination of
Contracts (1954) LXIX(4) International Labour
Review, an early theory of acquired rights.
274. Jump up^ See Land Registration Act 2002 Sch
3, para 1. In Germany, the Brgerliches
Gesetzbuch 613a(1), corresponds to the BTD
2001 article 3. It was first introduced in 1972, by
analogy with BGB 566 which contains the
analogous principle that Kauf bricht nicht Miete, or
"conveyances don't break leases".
275. Jump up^ [1988] UKHL 10, [1989] ICR 341
276. Jump up^ Wilson v St Helens BC and British
Fuels Ltd v Baxendale[1998] UKHL 37, [1999] 2 AC
52
277. Jump up^ Credit Suisse First Boston (Europe)
Ltd v Lister [1999] ICR 794
278. Jump up^ University of Oxford v
Humphreys [2000] IRLR 183
279. Jump up^ Szen v Zehnacker
Gebudereingung GmbH (1997) C-13/95, [1997] ICR
662, where a cleaning lady kept her job at the same
school, but a different employer had won the cleaning
contract and rehired her
280. Jump up^ Szen (1997) C-13/95, "14 In order
to determine whether the conditions for the transfer of
an entity are met, it is necessary to consider all the
facts characterizing the transaction in question,
including in particular [1.] the type of undertaking or
business, [2.] whether or not its tangible assets, such
as buildings and movable property, are transferred,
[3.] the value of its intangible assets at the time of the
transfer, [4.] whether or not the majority of its
employees are taken over by the new employer, [5.]
whether or not its customers are transferred, [6.] the
degree of similarity between the activities carried on
before and after the transfer, and [7.] the period, if
any, for which those activities were suspended."
(numbering added)
281. Jump up^ (2001) C-172/99, [2001] IRLR 171
282. Jump up^ RCO Support Services v
Unison [2002] EWCA Civ 464
283. Jump up^ cf Secretary of State for Trade and
Industry v Slater[2007] IRLR 928 and Oakland v
Wellswood (Yorkshire) Ltd[2009] EWCA Civ 1094,
[2010] IRLR 82
284. Jump up^ IA 1986 s 19 and Sch B1 para 99
285. Jump up^ Re Allders Department Stores
Ltd [2005] BCC 289
286. Jump up^ Leeds United AFC Ltd [2008] BCC
11
287. Jump up^ Krasner v McMath [2005] EWCA Civ
1072, [2005] IRLR 995
288. Jump up^ See IA 1986 ss 176ZA, 175, 176A,
386, Sch 6, s 74(2)
289. Jump up^ Insolvency Proceedings (Monetary
Limits) Order 1986 (SI 1986/1996)
290. Jump up^ See Salomon v A Salomon & Co
Ltd [1897] AC 22 and the Preferential Payments in
Bankruptcy Amendment Act 1897 s 2
291. Jump up^ ILO Convention No 173 (1992)
292. Jump up^ 2008/94/EC, replacing 80/987/EC
and 2002/74/EC
293. Jump up^ See McMeechan v Secretary of State
for Employment[1997] ICR 549, holding an agency
worker could claim;Buchan and Ivey v Secretary of
State for Trade and Industry [1997] IRLR 80, holding
the purpose of the fund did not allow managing
directors to claim, but cf Secretary of State for Trade
and Industry v Bottrill [2000] EWCA Civ 781, holding
a director who was essentially without any autonomy
in a group did deserve protection.
294. Jump up^ See Mann v Secretary of State for
Employment [1999] IRLR 566 and Regeling v
Bestuur van de Bedrijfsvereniging voor de
Metaalnijverheid (1999) C-125/97, [1999] IRLR 379
295. Jump up^ See Robins v Secretary of State for
Work and Pensions(2007) C-278/05, [2007] ICR 779,
held that 20% insurance was not enough.
296. Jump up^ See C OCinneide, 'The Commission
for Equality and Human Rights: A New Institution for
New and Uncertain Times' (2007) Industrial Law
Journal 141
297. Jump up^ This has been in decline recently; in
2005 theCommission for Racial Equality only funded
three cases,CRE, Annual Report 2005 (London:
CRE, 2006) whereas up to 1984 it was funding one
fifth of all claims.
298. Jump up^ K Marx, Report of the General
Council to the Fourth Annual Congress (1969) quotes
"the extension of the principle of free trade, which
induces between nations such a competition that the
interest of the workman is liable to be lost sight of
and sacrificed in the fierce international race between
capitalists, demands that such [unions] should be still
further extended and made international."
299. Jump up^ Treaty of Versailles 1919, Part XIII,
Section I and art 427
300. Jump up^ See generally, KD Ewing, Britain and
the ILO (2nd edn IER 1994) 16. Two further general
working time conventions are the Forty-Hour Week
Convention, 1935 No 51 and theHolidays with Pay
Convention, 1936 No 52
301. Jump up^ There are 189 Conventions;
however, some have been superseded by others. For
instance, Conventions Nos 2, 34, 96 and 181 all
concern private employment agencies, but only
Convention 181 is in force.
302. Jump up^ Singapore Ministerial Declaration (13
December 1996)
303. Jump up^ See KA Elliott and RB Freeman, Can
Labor Standards Improve under
Globalization? (Institute for International Economics
2003)
304. Jump up^ e.g. EU-South Korea Free Trade
Agreement (14 May 2011) OJ 2011 L127, article 13
305. Jump up^ Tariff Preference Regulation (EC) No
732/2008 arts 7, 8, 15 and Annex II and III
306. Jump up^ [2006] UKHL 3, [2006] 1 All ER 823
307. Jump up^ [2011] UKSC 36
308. Jump up^ [2012] UKSC 1
309. Jump up^ Rome I Regulation (Regulation (EC)
No 593/2008
310. Jump up^ Brussels I Regulation (EC) No
44/2001
311. Jump up^ See Rome I, recital 23 and Brussels
I, recital 13
312. Jump up^ (2008) C-319/05
References[edit]
Texts
H Collins, KD Ewing and A McColgan, Labour Law,
Text, Cases and Materials (2nd edn Hart 2005) ISBN
1-84113-362-0
S Deakin, G Morris, Labour Law (5th edn Hart 2009)
M Freedland, 'Employment' in H Beale et
al. (ed), Chitty on Contracts (30th edn Sweet and
Maxwell 2009)
Treatises
H Collins, Justice in Dismissal (OUP 1992)
H Collins, Nine proposals for the reform of the law on
unfair dismissal (Institute of Employment Rights 2004)
KD Ewing (ed), The Right to Strike: From the Trade
Disputes Act 1906 to a Trade Union Freedom Bill
2006 (Institute for Employment Rights 2006)
A Fox, Beyond Contract: Work, Power and Trust
Relations (Faber 1974)
B Hepple, Labour Laws and Global Trade (Hart 2005)
M Freedland, The Contract of Employment (1976)
O Kahn-Freund, Labour and the Law (Hamlyn Lectures
1972)
S Webb and B Webb, History of Trade
Unionism (1894)
S Webb and B Webb, Industrial
Democracy (Longmans 1902)
KW Wedderburn, The Worker and the Law (Sweet and
Maxwell 1986) ISBN 0-421-37060-2
Articles
C Barnard, 'The UK and Posted Workers: The Effect of
Commission v Luxembourg on the Territorial
Application of British Labour Law' (2009) 38 ILJ 122
C Barnard, S Deakin and R Hobbs, Opting Out of the
48 Hour Week: Employer Necessity or Individual
Choice (2003) 32 ILJ 223
N Countouris, 'The Temporary Agency Work Directive:
Another Broken Promise?' [2009] 38(3) ILJ 329
PL Davies and C Kilpatrick, UK Worker
Representation after Single Channel (2004) 33 ILJ
121
S Deakin, 'Regulatory Competition after Laval'
(2008) 10 Cambridge Yearbook of European Legal
Studies 581
S Deakin, Does the personal employment contract
provide a basis for the reunification of labour law?
[2007] ILJ 36
A Dse-Deigenopoulos and A Hland, Dismissal of
Employees in the Federal Republic of Germany (1985)
48(5)Modern Law Review 539-563
KD Ewing, 'The State and Industrial Relations:
'Collective Laissez-Faire' Revisited' (1998) 5 Historical
Studies in Industrial Relations 1
KD Ewing, 'Job Security and the Contract of
Employment' (1989) 18 ILJ 217
KD Ewing and J Hendy QC, 'The Dramatic Implications
of Demir and Baykara (2010) 39(1) ILJ 2
KD Ewing and G M Truter,The Information and
Consultation of Employees Regulations: Voluntarisms
Bitter Legacy (2005) 68 MLR 626
T Goriely, Arbitrary Deductions from Pay and the
Proposed Repeal of the Truck Acts (1983) 12 ILJ 236
BA Hepple and BW Napier, Temporary Workers and
the Law (1978) 7 Industrial Law Journal 84
O Kahn-Freund, 'Labour Law' in M Ginsberg (ed), Law
and Opinion in England in the 20th Century (Stevens
1959)
D Kershaw, 'No End in Sight for the History of
Corporate Law: The Case of Employee Participation in
Corporate Governance' (2002) 2 Journal of Corporate
Law Studies 34
E McGaughey, 'Should Agency Workers be Treated
Differently?' (2010) SSRN
E McGaughey, 'British Codetermination and the
Churchillian Circle' (2014) UCL Labour Rights Institute
On-Line Working Papers LRI WP 2/2014
C Mogridge, Illegal Contracts of Employment: Loss of
Statutory Protection (1981) 20 ILJ 23
B Simpson, The National Minimum Wage Five Years
On (2004) 33 ILJ 22
I Steele, Sex Discrimination and the Material Factor
Defence under the Equal Pay Act 1970 and the
Equality Act 2010 (2010) 39 ILJ 264
C Summers, Collective agreements and the law of
contracts (1969) 90 Yale Law Journal 539
KW Wedderburn, 'Shareholders rights and the rule in
Foss v Harbottle' [1957] 16 Cambridge Law Journal
194
KW Wedderburn, 'Employees, Partnership and
Company Law' [2002] 31(2) Industrial Law Journal 99
Reports
Eleventh and Final Report of the Royal Commission
appointed to Inquire into the Organisation and Rules of
Trade Unions and Other Associations (18681869)
Parliamentary Papers vol xxxi
Committee on Relations between Employers and
Employed, Final Report (1918) Cmnd 9153
Whitley Committee, Interim Report on Joint Standing
Industrial Councils (1917) Cmnd 8606
J Whitley, Royal Commission on Labour in India (1931)
Cmd 3883
Lord Donovan, Report of the Royal Commission on
Trade Unions and Employers Associations (1965
1968) Cmnd 3623
HM Government, In Place of Strife (1969) Cmnd 3888
Lord Robens, Report of the Committee on Health and
Safety at Work (1972) Cmnd 5034
A Bullock, Report of the committee of inquiry on
industrial democracy (1977) Cmnd 6706
Green Paper, Trade Union Immunities (1981) Cmnd
8128
Department of Employment, Democracy in Trade
Unions (1983) Cm 8778
Department of Employment, Trade Unions and their
Members (1987) Cm 95
R Goode, Pension Law Reform (1993) Cmnd 2342
A New Partnership for Welfare: Partnership in
Pensions (1998) Cmnd 4179
Simplicity, Security and Choice: Working and Saving
for Retirement (2002) Cmnd 5677
External links[edit]
National
List of prominent labour law cases on bailii.org.uk
Employment rights guidance from direct.gov.uk
DBIS Employment Legislation - PL712 - Meaning of
dismissal
DBIS Employment Legislation - PL712 - Making a
complaint
International
Website with information on worker participation in the
EU
[show]
V
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Labour law of Europe

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V
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Economy of the United Kingdom

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Law of the United Kingdom

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Labour relations in the United Kingdom
United Kingdom industrial relations
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Basic rights at work
Table of contents
Rights at work
Written statement of the main terms and conditions of employment
Wages
Holidays and holiday pay
Lay offs and short-time working
Sickness
Time off work
The right to ask for time for training
The right to ask for flexible working
Health and safety
Harassment and discrimination
Bullying
Trade unions
Whistle-blowing at work
Surveillance at work
Notice of dismissal
How much notice should you get
How much notice is an employer entitled to
Are you entitled to be paid in your notice period
References
Pay in lieu of notice
Sunday working
Christmas Day working
Enforcing rights at work
Rights at work
Your rights at work will depend on:-
your statutory rights (see below), and
your contract of employment (see below).
Your contract of employment cannot take away rights you have by law. So if, for example, you have a
contract which states you are only entitled to two weeks' paid holiday per year when, by law, all full-time
employees are entitled to 28 days' paid holiday per year, this part of your contract is void and does not
apply. The right you have under law (to 28 days' holiday in this case) applies instead.
If your contract gives you greater rights than you have under law, for example, your contract gives you six
weeks' paid holiday per year, then your contract applies.
There are special rules about the employment of children and young people.
For information about young people and their rights at work in England, Wales and Northern Ireland,
see Young people and employment. In Scotland see, Young people: education and employment.
Statutory rights
Statutory rights are legal rights based on laws passed by Parliament.
Nearly all workers, regardless of the number of hours per week they work, have certain legal rights. There
are some workers who are not entitled to certain statutory rights (see below).
Sometimes an employee only gains a right when they have been employed by their employer for a certain
length of time, and when this applies, the length of time before the employee gains the right is listed
below. Unless you are in the group of workers who are excluded (see Workers not entitled to certain
statutory rights), you will have the following statutory rights:-
the right to a written statement of terms of employment within two months of starting work, (see
under heading Written statement of the main terms and conditions of employment)
the right to an itemised pay slip. This applies from the day the employee starts work.
More on Rights to pay
the right to be paid at least the national minimum wage. This applies from the day the employee
starts work.
More on Rights to pay
the right not to have illegal deductions made from pay. This applies from the day the employee
starts work.
More on Rights to pay
the right to paid holiday. Full-time employees are entitled to at least 28 days a year. Part-time
employees are entitled to a pro rata amount
More on Holidays and holiday pay.
the right to time off for trade union duties and activities. This applies from the day the
employee starts work. The time off does not necessarily have to be paid. Employees also have
the right to be accompanied by a trade union representative to a disciplinary or grievance
hearing. If an employee takes part in official industrial action and is dismissed as a result, this will
be an automatically unfair dismissal
the right to paid time off to look for work if being made redundant. This applies once the
employee has worked for two years for that employer (see under heading Time off work)
the right to time off for study or training for 16-17 year olds. This applies from the day the
employee starts work (see under heading Time off work)
the right to paid time off for ante natal care. This applies from the day the employee starts
work, (see under heading Time off work)
the right to paid maternity leave. More on Maternity leave.
the right to paid paternity leave
the right to ask for flexible working to care for children or adult dependants see under
heading The right to ask for flexible working
the right to paid adoption leave
the right to take unpaid parental leave for both men and women (if you have worked for the
employer for one year) and the right to reasonable time off to look after dependants in an
emergency (applies from the day the employee starts work) (see under heading Time off work)
the right under Health and Safety law to work a maximum 48-hour working week. This applies
from the day the employee starts work (see under heading Health and safety)
the right under Health and Safety law to weekly and daily rest breaks. This applies from the day
the employee starts work. (see under heading Health and safety). There are special rules for
night workers
the right not to be discriminated against. This applies from the day the employee starts work.
See under heading Harassment and discrimination
the right to carry on working until you are at least 65
the right to notice of dismissal, provided you have worked for your employer for at least one
calendar month
the right to written reasons for dismissal from your employer, provided you have worked for
your employer for one year if you started before 6 April 2012 or two years if you started on or
after that date. Women who are pregnant or on maternity leave are entitled to written reasons
without having to have worked for any particular length of time
the right to claim compensation if unfairly dismissed. In most cases to be able to claim unfair
dismissal you will have to have worked for your employer for one year if you started before 6 April
2012 or two years if you started on or after that date
the right to claim redundancy pay if made redundant. In most cases you will have to have
worked for two years to be able to claim redundancy pay
the right not to suffer detriment or dismissal for blowing the whistle on a matter of public
concern (malpractice) at the workplace. This applies from the day the employee starts work (see
under heading Whistle-blowing at work)
the right of a part-time worker to the same contractual rights (pro-rata) as a comparable full-
time worker
the right of a fixed-term employee to the same contractual rights as a comparable permanent
employee.
You may also have additional rights which may be set out in your contract of employment. In particular, a
part-time workers contract should be checked.
If in doubt about whether or not you have any statutory rights you should consult an experienced adviser,
for example, at a Citizens Advice Bureau, To search for details of your nearest CAB, including those that
can give advice by email, click on nearest CAB .
Workers not entitled to certain statutory rights
Some workers are not entitled to some statutory rights (see under heading Rights at work). They are:-
anyone who is not an employee, for example, an agency or freelance worker. However, most
workers are entitled to certain rights such as the national minimum wage, limits on working time
and other health and safety rights, the right not to be discriminated against and paid holiday.
For information on the rights of agency workers, see Agency workers' rights.
If you are not an employee but an agency/freelance worker, a casual worker, a trainee or self employed,
you should seek help from an experienced adviser, for example, a Citizens Advice Bureau. To search for
details of your nearest CAB, including those that can give advice by email, click onnearest CAB .
employees who normally work outside the UK
members of the police service. However, members of the police service are covered by
discrimination law
members of the armed forces. However, members of the armed forces are covered by
discrimination law
merchant seamen and share fishermen
some workers in the transport industry are not entitled to paid holidays or limits on their working
hours by law and have to rely on their contract
trainee doctors are not entitled to paid holidays and have to rely on their employment contract.
They are also limited to working a 58 hour week, rather than 48 hours.
Rights under the contract of employment
The contract of employment is the agreement made between the employer and the employee. This could
be in the form of a written agreement or what has been agreed verbally between them.
In addition, the contract of employment will also include custom and practice agreements. These are
how things are usually done in the workplace, for example, if the employer always gives the employees a
days holiday in August. Even though this is not mentioned in the written contract this will form part of the
contract of employment as it is the usual practice.
If the written contract says one thing, but in practice all the employees have been doing something else
with the employers knowledge and agreement, the custom and practice would form the contract rather
than the written statement.
A trade union may have negotiated an agreement with an employer about conditions at work. The
negotiated agreement will often form part of a contract of employment, particularly if the conditions
negotiated are more favourable than the previous ones.
Illegal contracts of employment
Some contracts of employment will be illegal if:-
the employee gets all or part of their wages as cash in hand; and
tax and national insurance contributions are not paid; and
the employee knows they are getting paid in this way to avoid paying national insurance and tax.
For more information on contracts of employment see Contracts of employment, and in England, Wales
and Scotland, see Changes to employment contracts in Employment fact sheets.
Back to contents
Written statement of the main terms and conditions of
employment
All employees, regardless of the number of hours they work per week, are entitled to receive a written
statement from their employer, within two months of starting work. The statement describes the main
terms of the contract of employment.
The statement must give details about:-
job title
wages
hours of work
holiday entitlement
sick pay
pension schemes
notice
grievance, dismissal and disciplinary procedure.
For more information on the written statement of terms and conditions see Contracts of employment.
Back to contents
Wages
There are a number of statutory rights associated with wages.
For information about wages including information about the national minimum wage, illegal deductions
from wages and rights to a pay slip, see Rights to pay. For more information about illegal deductions from
wages in England, Wales and Scotland, see Employer withholds your pay, inEmployment fact sheets.
For information about the pay of agency workers, see Additional rights for agency workers.
Back to contents
Holidays and holiday pay
Nearly all workers are entitled by law to paid annual leave. Full-time workers are entitled to at least 5.6
weeks a leave year. If you work part-time, you're entitled to a pro rata amount. There are some workers
who are not entitled to paid holiday.
For more information about holidays and holiday pay, see Holidays and holiday pay, and in England,
Wales and Scotland, see Holidays and holiday pay in Employment fact sheets.
Bank holidays
Unless your contract of employment gives you bank holidays in addition to your statutory paid holiday,
bank holidays are included when calculating your entitlement. So if, for example, you work full-time and
you have eight days off in a year for bank holidays, you will be entitled to these eight days plus another
20 days of holiday.
For more information about the dates of bank holidays, see Bank and public holidays.
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Lay offs and short-time working
If your employer has no work for you to do, they may put you on short-time working or lay you off.
If you are laid off, you will not usually get paid. Short-time working means you will receive only part of your
normal wage. This could affect your pension. It could also affect your tax position and any benefits you
get. For example, if your hours fall below a certain level, this could affect any tax credits you get. Make
sure you tell HM Revenue and Customs if your hours go down. It could also mean that, because your
earnings have dropped, you become eligible for benefits or other help that you couldn't get before, for
example, Housing Benefit and Council Tax Reduction.
If you are laid off or put on short-time working, you may be entitled to a payment from your employer,
called a guarantee payment.
In some cases, lay-offs or short-time working may be offered to you as an alternative to redundancy. In
some cases, you may be able to claim a redundancy payment if you've been laid off or put on short-time
working.
For more information about short-time working and lay-offs, see When can your employer make you
redundant.
For more information about benefits and tax credits, see Benefits and tax credits for people in work.
For more information about Housing Benefit, see Help with your rent Housing Benefit. For more
information about Council Tax Reduction, see Council tax Reduction what you need to know in
England, Wales and Scotland and Help with your rates in Northern Ireland.
If you have been laid off or put on short-time working, you should consult an experienced adviser about
the benefits and other payments you may be entitled to, for example, a Citizens Advice Bureau. To
search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest
CAB .
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Sickness
Many employees will be entitled to statutory sick pay if they are off work due to sickness. In addition,
some employees may receive occupational sick pay from their employer but this will depend on their
contract of employment.
For more details about statutory sick pay, see Off work because of sickness. In England, Wales and
Scotland, there is also a fact sheet called Sickness at work in Employment fact sheets.
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Time off work
Almost all employees have a statutory right to take paid time off work for the following:-
to carry out duties as a trade union official
to carry out duties as a trade union health and safety representative
to look for work if faced with redundancy
to receive ante-natal care
to have a baby, to take paternity leave, to take adoption leave or to ask for flexible working hours
to care for a child
For more information about maternity, paternity and adoption leave and asking for flexible working hours,
see Parental rights at work.
to study or train for employees aged 16-17
In England and Wales, for more information about young peoples right to time off for study/training,
see Young people and employment.
In addition, almost all employees have a right to take time off work, although not necessarily with pay, for
the following:-
to participate in trade union activities
to perform public duties, for example, being a JP, local authority councillor or school governor
to care for their children. People who have worked for their employer for one year have the right
to unpaid parental leave. You are entitled to 18 weeks' unpaid leave before your child is five, or if
your child is disabled, before they are 18.
to attend to unexpected problems with dependants, for example, where child minding
arrangements break down. A dependant includes anyone who reasonably relies on the employee
For more information about your right to time off work in England, Wales and Scotland, see Time off work
in Employment fact sheets.
If you have a query about your rights to time off work, or a problem arises in relation to these rights, you
should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of
your nearest CAB, including those that can give advice by email, click on nearest CAB .
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The right to ask for time for training
In England, Scotland and Wales some people have the right to ask for time off work to do training. But
even though you have the right to ask for time off, your employer doesn't have to give you this time off. If
they do give you the time off, they don't have to pay you for it.
You have the right to ask for time off for training if:
you are an employee
you work for an organisation with 250 or more employees
you've been working for your employer for at least 26 weeks when you make the request
you dont already have a legal right for paid time off to study or train. For example, you might
already have this right if you're 16-18.
In England and Wales, for more information about time off for study or training for young people,
seeYoung people and employment.
You can ask for time off to do any training which would help you be more effective at work, and improve
the performance of the business you work for. The training can be training that leads to a qualification, or
that helps you develop skills at work. There's no time limit on the amount of time you can ask for.
You can find out more about the right to ask for time off to train, what you can ask for and how to make
your request on the Directgov website at: www.direct.gov.uk .
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The right to ask for flexible working
If you are the parent of a child under 17 (under 18 if your child is disabled) or caring for an adult, you have
the right to ask your employer for flexible working. You must also have worked for your employer for at
least 26 weeks.
Flexible working can include working part time, working school hours, working flexitime, home working,
job sharing, shift working, staggering hours and compressing hours (where you work your total number of
agreed hours over a shorter period).
Although you have the right to ask to work flexibly, your employer doesn't have to agree to it. However,
they must give your request serious consideration and have a good business reason if they decide not to
agree.
If you are asking for flexible working because you're a parent, you must be responsible for your child on a
day to day basis.
If you are caring for an adult, the adult must be one of the following:
your husband
your wife
your civil partner
your partner
a family relative, such as a mother, father, grandfather, brother or sister
someone who isn't related to you, but lives at the same address as you.
You can make one request to work flexibly each year. This must be in writing. You should say how you
think the change in your working pattern will affect your employer's business and how this might work in
practice.
Your employer must also follow a standard procedure for considering your request. This includes having
a meeting with you. If your employer wants to turn down your request for flexible working, they must give
their reasons in writing. You have the right to appeal if your request is turned down. You must do this in
writing, within at least 14 days of getting your employer's decision. You should give your reasons for
appealing and make sure your appeal is dated.
If your appeal for flexible working is refused, you may be able to:
ask ACAS to help you sort out your dispute with your employer (in Northern Ireland this is the
Labour Relations Agency). ACAS has set up a flexible working arbitration scheme to deal with
this type of dispute. You can find out more on the ACAS website at www.acas.org.uk
complain to an employment tribunal.
You can only complain to an employment tribunal under certain circumstances, for example, where your
employer hasn't followed the procedure properly for considering your request or where they haven't taken
the right information into account when making their decision.
You may also be able to make a claim to an employment tribunal for sex discrimination. For example, you
can make a claim if you are a man and your request to work part-time to look after your children is
refused when a request by a female employee would be accepted. If you are a woman, you may be able
to make a claim on the basis that refusing to allow you to work flexibly is 'indirect sex discrimination'. This
is because more women than men have childcare responsibilities.
There's a strict time limit for making a claim to an employment tribunal. This is usually three months
minus one day from the date when the thing you are complaining about last happened. This could be
extended from 6 April 2014 if you notify Acas of your claim. Notifying Acas will be compulsory in most
employment tribunal cases from 6 May 2014.
This is a very complicated area. If you want to make a claim to an employment tribunal because your
employer has refused your request for flexible working, you should get advice from an experienced
adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including
those that can give advice by email, click on nearest CAB .
You should also bear in mind that an employment tribunal may not be able to over-turn your employer's
decision. However, it may be able to force your employer to reconsider your request or to award you
compensation.
For more information about the right to flexible working, go to the Directgov website
at:www.direct.gov.uk/en/Employment . Directgov has an interactive tool which can help you work out the
rights and options for your own particular circumstances.
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Health and safety
All employers have a statutory duty to take care of the health and safety of all their employees, for
example, they should provide first aid equipment, and adequate means of escape in case of fire,
protective clothing and ensure all machinery is safe.
In addition, there are specific rules which cover the following:-
fire safety. For more information about employers' responsibilities for fire safety in England,
visit www.gov.uk , in Wales visit www.wales.gov.uk and in Scotland,
visit:www.infoscotland.com/firelaw
cleanliness
noise
machinery
lifting and carrying heavy weights
hazardous substances
toilets
washing facilities
drinking water
seating
first aid facilities
temperatures
hours and rests. Nearly all workers have the right not to have to work for more than 48 hours on
average, a week. Night workers cannot work an average of more than eight hours in each 24
hour period. Workers aged 18 and over (adult workers) are entitled to one day off each week.
Workers aged 16-18 (adolescent workers) are entitled to two days off each week. Adult workers
are entitled to eleven hours consecutive rest per day, and a minimum 20 minute rest break if their
working day is longer than six hours. Adolescent workers are entitled to 12 hours consecutive rest
per day, and a minimum 30 minute rest break if they work for longer than four and a half hours
use of computers
smoking at work is banned.
For more information, in England, Scotland and Wales, about health and safety at work, see Accidents at
work in Employment fact sheets.
For more information about your right to rest breaks in England, Wales and Scotland, see Rest breaks at
work, and Working hours in Employment fact sheets.
In England, Wales and Scotland you can find further information on your rights on the Health and Safety
Executive (HSE) website at www.hse.gov.uk .
In Wales, HSE has a bi-lingual website at www.hse.gov.uk .
In addition, in Scotland, Safe and Healthy Working has an adviceline on 0800 0192211 and a website
at: www.safeandhealthyworking.com .
In Northern Ireland, the HSENI have an information and advice line on 0800 032 0121 and a website
atwww.hseni.gov.uk .
If you have a query about the weekly limit on working hours or about night work you should contact the
Pay and Work rights helpline on 0800 917 2368.
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Harassment and discrimination
Discrimination means treating someone worse than other people for some reason. You have rights not to
be treated worse than other people at work because of your:
age
disability
pregnancy or maternity leave
race
religion or belief
sex
sexual orientation
gender identity.
Discrimination can be either direct or indirect. Direct discrimination occurs when someone is treated
worse than other people for some reason. For example, if an Asian employee is not selected for
promotion because of their race, this is direct race discrimination.
Indirect discrimination occurs where a particular employee cannot meet a requirement which is not
justifiable in terms of the work and they are at a disadvantage as a result. For example, if the employer
only gives training to full-time workers, this would indirectly discriminate against women, as most part-time
workers are women.
Harassment is also a form of discrimination. Harassment can include verbal abuse, suggestive remarks
and unwanted physical contact. You may also be discriminated against if you are victimised because you
have tried to take action about discrimination.
You can find out more about your rights not to be discriminated against on our Discrimination pages.
If you've been discriminated against at work you can make a claim to an employment tribunal. There's a
strict time limit for making a claim. This is usually three months minus one day from the date when the
thing you are complaining about last happened. This could be extended from 6 April 2014 if you notify
Acas of your claim. Notifying Acas will be compulsory in most employment tribunal cases from 6 May
2014.You should get advice about what to do before the time limit is up.
You can get help from an experienced adviser, for example, at a Citizens Advice Bureau. To search for
details of your nearest CAB, including those that can give advice by email, click on nearest CAB .
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Bullying
Your employer should protect you from being bullied at work. The Advisory, Conciliation and Arbitration
Service (ACAS) has useful guidance about workplace bullying and harassment on its website
at www.acas.org.uk . If you are a member of a union, they will be able to provide information and help.
The Trades Union Congress (TUC) worksmart website also has useful information on bullying in the
workplace at www.worksmart.org.uk .
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Trade unions
An employee has the right to join a trade union, and should not be refused a job, dismissed, harassed or
selected for redundancy because they are a member of or wish to join a trade union.
An employee also has the right not to join a trade union if they wish, and should not be refused a job,
dismissed, harassed or selected for redundancy because they refused to join.
A member of a trade union has the right to take part in trade union activities, for example, recruiting
members, collecting subscriptions and attending meetings.
Trade union activities must take place either outside the employees normal working hours or at a time
agreed with the employer. An employee has no right to be paid for this time off work unless their contract
allows for this.
Trade union activities don't include taking industrial action, for example, going on strike. There are
different rules about taking industrial action. To find out about rights to take industrial action, see the
Trades Union Congress (TUC) website at: www.worksmart.org.uk .
An employee should not be refused a job or dismissed because they are on a list because of their trade
union activities or membership. It is also against the law to make, sell, supply or use a list to discriminate
against people in a trade union.
You can get more information and advice about trade unions from the TUC or the Wales TUC. For
information about which union to join, look on the union finder page of the TUC's website
atwww.worksmart.org.uk .
Contact details for the TUC are as follows:-
England
TUC
23-28 Great Russell Street
London
WC1B 3LS
Tel: 020 7636 4030
E-mail: info@tuc.org.uk
Website: www.tuc.org.uk
Wales
Wales TUC
Transport House
1 Cathedral Road
Cardiff
CF11 9SD
Tel: 029 2034 7010
E-mail: wtuc@tuc.org.uk
Website: www.tuc.org.uk
Scotland
Scottish TUC
333 Woodlands Road
Glasgow
G3 6NG
Tel: 0141 337 8100
E-mail: info@stuc.org.uk
Website: www.stuc.org.uk
Northern Ireland
Irish Congress of Trade Unions
Northern Ireland Committee
4-6 Donegall Street Place
Belfast
BT1 2FN
Tel: 028 9024 7940
E-mail: info@ictuni.org
Website: www.ictuni.org
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Whistle-blowing at work
There is some protection for workers who are concerned about malpractice at work and who publicly
disclose information about their employers activities. This is called whistle-blowing. The information
disclosed must relate to:-
a criminal offence
a failure to comply with a legal obligation
a miscarriage of justice
a health and safety issue
damage to the environment
an attempt cover up any of the above.
Further information and help with cases of public disclosure is available from:-
Public Concern at work
3rd Floor, Bank Chambers
6 - 10 Borough High Street
London
SE1 9QQ
Tel (general enquiries and helpline): 020 7404 6609
Fax: 020 7404 6576
E-mail (enquiries): whistle@pcaw.co.uk
E-mail (helpline): helpline@pcaw.co.uk
Website: www.pcaw.co.uk
Audit Scotland produces a leaflet called Whistleblowing, that outlines what to do if you work for the public
sector in Scotland and have concerns about corruption or malpractice at work. It is available on the Audit
Scotland website at www.audit-scotland.gov.uk .
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Surveillance at work
Employers have the right to monitor their employees communications, provided they have warned them
first that they are doing this. Employers can monitor, for example:
postal communications
telephone calls
faxes
emails
internet use
by CCTV use.
In some circumstances, an employer can also monitor what their employees are doing by using CCTV.
Monitoring and surveillance is only permitted by law if:-
the monitoring is relevant to the employers business
the telecommunications system is provided for use partly or wholly in connection with the
employers business
the employer has made all reasonable efforts to inform users that their communications will be
intercepted.
Ideally, an employer should have a code of conduct or policy about surveillance. If it has been agreed
with the employees, it will form part of the contract of employment and can be the basis for disciplinary
action or a grievance.
If you believe that your employer has been monitoring your communications in a way which is not
permissible, there are a number of ways in which you can challenge this.
For more information about surveillance in the workplace in England, Wales and Scotland, seeMonitoring
at work.
To challenge surveillance in the workplace, you will need expert advice and should initially consult a
Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice
by email, click on nearest CAB .
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Notice of dismissal
Most employees have a legal right to a period of notice if their employer dismisses them. Many
employees will have extra rights to notice under their contract of employment. There will always be a
contract of employment, even if there is nothing written down. Even if the law or your contract of
employment does not give you the right to a minimum amount of notice, you are still entitled to
'reasonable' notice.
In most circumstances, if your employer wants to dismiss you, they should follow a proper dismissal and
disciplinary procedure. Before dismissing you, your employer should:
send you a written statement, telling you why they want to dismiss you
hold a meeting with you to discuss the matter
hold an appeal meeting with you, if you want to appeal against your dismissal.
After the meeting with you, or the appeal meeting if there is one, your employer should make a final
decision about what they are going to do, and tell you what it is. If they are still going to dismiss you, your
employer should tell you when the dismissal is to take effect, and how much notice they are giving you.
They do not have to do this in writing, but it would be good practice to do so. Notice of dismissal must be
given directly to you and not through a third party, for example your trade union.
If you are not happy with your employer's decision and you think your rights have been ignored, you may
be able to take your case to an employment tribunal (industrial tribunal in Northern Ireland). You may
need to comply with the dismissal and disciplinary procedure first. If you do not, any future award you get
from a tribunal may be reduced.
There's a strict time limit for making a claim to an employment tribunal. This is usually three months
minus one day from the date when the thing you are complaining about last happened. This could be
extended from 6 April 2014 if you notify Acas of your claim. Notifying Acas will be compulsory in most
employment tribunal cases from 6 May 2014.
This is a very complicated area. If you want to make a claim to an employment tribunal because your
employer has dismissed you, you should get advice before the time limit is up. You can get help from an
experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB,
including those that can give advice by email, click on nearest CAB .
For more information about the procedures your employer should follow when they want to dismiss you,
in England, Wales and Scotland, see Sorting out problems at work. In Northern Ireland, see Dealing with
grievances, dismissal and disciplinary action at work. For more information about being dismissed
because you are 65 or above normal retirement age, see Age discrimination at work.
Who has no legal right to minimum notice
The law does not give the following employees the right to a minimum period of notice but see also
under heading 'Reasonable' notice:-
those employed for less than one calendar month by their employer. From 1 October 2002, the
law gives some employees on fixed-term contracts who have worked for their employer for one
month, the right to notice
Crown servants
seamen employed on a ship registered in the United Kingdom under a crew agreement
employees who have been dismissed for gross misconduct.
If you have been dismissed because of gross misconduct, you may want to make a claim to an
employment tribunal. There's a strict time limit for making a claim to an employment tribunal. This is
usually three months minus one day from the date when the thing you are complaining about last
happened. This could be extended from 6 April 2014 if you notify Acas of your claim. Notifying Acas will
be compulsory in most employment tribunal cases from 6 May 2014.You should get advice about what to
do before the time limit is up.
You can get help from an experienced adviser, for example, at a Citizens Advice Bureau. To search for
details of your nearest CAB, including those that can give advice by email, click on nearest CAB .
If you have no legal right to notice, you will still be entitled to 'reasonable' notice or the notice your
contract gives you. For more information about 'reasonable notice', see under heading 'Reasonable'
notice. However, if you have been dismissed for gross misconduct, you will not be entitled to any notice
under your contract, or any 'reasonable' notice. For this reason, it is important to check the real reason for
the dismissal.
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How much notice should you get
The law gives all employees the right to a minimum amount of notice, except those listed under the
heading Who has no legal right to minimum notice. This period of notice is:-
one week for employees who have worked for their employer for one month but less than two
years; or
two weeks if the employee has worked for their employer for two whole years; and
one extra week for each further whole year's employment at the date the notice period expires,
up to a maximum of twelve weeks' notice in total.
However, if you are being dismissed because you are 65, or above normal retirement age, the rules
about notice are different.
Contractual notice
Your contract of employment may give you more notice than the minimum the law gives you. However,
you can never get less than the minimum, no matter what your contract says.
If your contract does not specify a period of notice, you may still have the right to a minimum period of
notice because of custom and practice. For example, if everyone who works for your firm has always
been given at least three weeks' notice, you would have the right to this much notice.
'Reasonable' notice
If the law does not give you the right to notice, and there is no notice period in your contract (whether
written, spoken or through custom and practice), you will still be entitled to 'reasonable' notice. What is
reasonable will often depend on your pay period. For example, if you are paid weekly, you could argue
that a week is reasonable, and if you are paid monthly, you could argue that a month is reasonable.
If you think you should be entitled to reasonable notice, you should consult an experienced adviser, for
example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can
give advice by email, click on nearest CAB .
For more information about what notice you should get when you are dismissed from work,
seeDismissal and, in England Wales and Scotland, see Notice of dismissal in Employment fact sheets.
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How much notice is an employer entitled to
The notice you should give your employer before resigning should be in the contract. If your contract does
not say how much notice you must give your employer then, if you have worked for one month or more,
the minimum notice you should give is one week. If you have worked for less than one month, the notice
period should be reasonable. See under heading 'Reasonable' notice.
If your contract says you must give your employer more notice than this, you must give the amount of
notice in your contract. Your contract may set out how much you must give, whether it must be written,
and/or when you should give it.
If an employer withholds money owed because you gave incorrect notice
If you leave your job without giving proper notice, your employer may try to withhold part or all of the
money owed to you. In general, employers are not legally entitled to withhold money owed, unless your
employment contract allows for it.
If this happens, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To
search for details of your nearest CAB, including those that can give advice by email, click onnearest
CAB .
For more information in England, Wales and Scotland about your rights when your employer withholds
money owed to you, see Employer withholds your pay in Employment fact sheets.
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Are you entitled to be paid in your notice period
If you work your normal working hours in your notice period, you are entitled to be paid your normal pay.
You may not be able to work during the notice period because you are:-
willing to work but are given no work to do
on holiday
off work through sickness or injury.
If you do not work during the notice period for one of the reasons above, the law says you should usually
still get your normal pay. However, there is an exception to this rule. If your contract gives you at least
one week's notice more than the law gives you, you lose your legal right to be paid during the whole of
the notice period.
If you are in this position, you should consult an experienced adviser, for example, at a Citizens Advice
Bureau. To search for your nearest CAB, including those that can give advice by email, click on nearest
CAB .
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References
Does my employer have to give me a reference?
Usually, you don't have a right to a reference from your employer. But your employer does have to give
you a reference in some situations, for example:
if your contract says they have to give you a reference
where the reference is needed by a regulatory body. This might be a body like the Financial
Conduct Authority so they can make sure people employed to give financial advice are qualified
to do this.
There are different reasons why your employer might refuse to give you a reference. If you think your
employer won't give you a reference for a reason related to your race, disability, sexual orientation, age,
religion or belief or gender reassignment this might be discrimination. You should get advice from an
experienced adviser, for example at a Citizens Advice Bureau. To search for details of your nearest CAB,
including those that can give advice by email, click on nearest CAB .
Do I have a right to see a reference written about me?
Your previous or current employer doesn't have to show you a reference they've written about you. So if
you want to see a reference that's been written about you, you should make a request to the employer the
reference was sent to. You should make this request under the Data Protection Act. The employer will
then work out whether they can show you the reference, in line with the Data Protection Act. You can find
out more about making a request to see a reference on the Information Commissioner's website
at: www.ico.org.uk . Or you can call their helpline on 0303 123 1113. The helpline is open Monday to
Friday, 9am to 5pm.
Can my employer write a bad reference about me?
Your employer has a duty to write an accurate reference about you, and shouldn't mislead the employer
asking for the reference. But some information shouldn't be included in a reference, unless you agree to
it. This is information like your medical records, or information about spent criminal convictions.
In England, Wales and Scotland, for more information about spent criminal convictions and work, seeDo I
have to tell my employers about my criminal record?
Your employer also mustn't give information in a reference or another document, for example, an e-mail,
which is inaccurate, or which is deliberately wrong or misleading. If this has happened, you may be able
to take action against your employer.
If you're in this situation, you should get advice from an experienced adviser, for example at a Citizens
Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email,
click on nearest CAB .
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Pay in lieu of notice
If your employer has dismissed you without giving you the notice you are entitled to either by law or by
your contract, your employer should pay you in lieu of notice. In lieu means instead of. This is also
called severance pay. The only exception to this is when you have been dismissed because of gross
misconduct.
For more information about gross misconduct, see Step five: is the reason for dismissal one which isn't
automatically unfair, in Dismissal.
The amount of pay in lieu of notice you should get will depend on how much notice your are entitled to.
You should get pay in lieu at the rate of your normal wages. For example, if you are entitled to four weeks'
notice, but are only given one, you will be entitled to three weeks pay in lieu of notice. You may be
entitled to more than this, depending on what your contract says.
People often have problems with notice of dismissal. These are often to do with notice and sickness,
maternity leave and holidays. If you are experiencing problems with notice, you should consult an
experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB,
including those that can give advice by email, click on nearest CAB .
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Sunday working
Shop-workers who work in large shops (over 280 square metres) have certain rights if they are asked to
work on Sundays.
Shop-workers includes betting shop workers. Employees of a catering business do not count as shop-
workers and are not protected from having to work on Sundays. This includes employees of pubs,
restaurants and cafes.
Shop-workers have the same rights to limits on hours of work and entitlements to rest breaks, under
Health and Safety law, as other workers - see under heading Health and safety.
For more information, in England, Wales and Scotland, about your rights to rest breaks at work, see Rest
breaks at work in Employment fact sheets.
Shop-workers who started working for their employer before 26 August
1994 (6 April 2004 in Scotland; 4 December 1997 in Northern Ireland)
If you are a shop-worker, and you started working for your employer before 26 August 1994 (4 December
1997 in Northern Ireland) you are called a protected shop-worker. If you do not wish to work on Sundays
you do not have to, and if your employer tries to dismiss you because you refuse to work on Sundays,
you can automatically claim unfair dismissal at an employment tribunal (industrial tribunal in Northern
Ireland). This is regardless of how long you have worked for your employer, of whether you work full-time
or part-time and of how old you are.
For more information, see Dismissal.
If you are a protected shop-worker you must not be treated unfairly by your employer because you do not
wish to work on Sundays. If you are being treated unfairly by your employer because you do not wish to
work on Sundays, you should consult an experienced adviser, for example, at a Citizens Advice Bureau.
To search for details of your nearest CAB, including those that can give advice by email, click on nearest
CAB .
Shop-workers who started working for their employer after 26 August 1994
(6 April 2004 in Scotland; 4 December 1997 in Northern Ireland)
If you started working for your employer after 26 August 1994 (6 April 2004 in Scotland; 4 December
1997 in Northern Ireland), you may be required to work on Sundays. However, unless you are employed
to only work on Sundays, you may opt out of Sunday working. You have to give your employer three
months' notice of your objection to working on Sundays. This notice must be in writing, and you must date
and sign it. During the three-month notice period your employer may require you to work on Sundays.
After that, if you give notice in the correct way and you work the three-month notice period, you have the
right not to be dismissed or be treated unfairly for refusing to work on Sundays. If you are dismissed, it will
count as an automatically unfair dismissal.
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Christmas Day working
Large shops (over 280 square metres) in England and Wales are not allowed to open on Christmas Day.
This is regardless of which day of the week it falls on. This means that if you work in one of these shops,
you must be given Christmas Day off. However, whether or not you will be paid will depend on your
contract of employment.
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Enforcing rights at work
Raising a grievance
If you have a problem with your employer you should usually try to sort it out informally first. If this doesn't
work, you should follow a proper grievance procedure which all employers should have. This means you
should:
send your employer a written statement, setting out your grievance, and give them a reasonable
time to respond
meet with your employer to discuss your grievance
appeal against your employer's decision if you are not happy with it.
If you have followed this procedure and are still not happy with the outcome, you can take your case to an
employment tribunal.
For more information about raising a grievance with your employer, in England, Wales and Scotland,
see Sorting out problems at work. In Northern Ireland, see Dealing with grievances, dismissal and
disciplinary action at work.
Employment tribunals
Employment tribunals (industrial tribunals in Northern Ireland) are legal bodies which deal with complaints
about employment rights. A tribunal is made up of a legally qualified employment judge and two other
people representing the employers and the employees sides of industry. A tribunal can deal with
problems on the following:
written statement of terms and conditions
maternity rights
discrimination because of things like race, sex or disability
holiday rights
itemised pay statement
unpaid wages and other unlawful deductions from wages
equal pay
some health and safety problems
unfair dismissal and redundancy.
In most cases, you may have to raise a written grievance with your employer before you can make a
claim to an employment tribunal.
For more information about making a claim to an employment tribunal and raising a grievance with your
employer, in England, Wales and Scotland see Sorting out problems at work. In Northern Ireland, see
Resolving disputes at work in Northern Ireland.
If you make a claim to an employment tribunal (industrial tribunal in Northern Ireland), you may risk losing
your job. There's a strict time limit for making a claim to an employment tribunal. This is usually three
months minus one day from the date when the thing you are complaining about last happened. This could
be extended from 6 April 2014 if you notify Acas of your claim. Notifying Acas will be compulsory in most
employment tribunal cases from 6 May 2014.
This is a very complicated area. If you want to make a claim to an employment tribunal, you should get
advice before the time limit is up. You can get help from an experienced adviser, for example, at a
Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice
by email, click on