labour law guide

Labour law

A. McColgan

LLB 2660018 BSc Accounting with Law / Law with Accounting 2770406 BSc Management with Law / Law with Management

2006

This subject guide was prepared for the University of London External System by:

u Aileen McColgan, LLM, MA (Cantab), Professor of Human Rights Law, King’s College London, University of London

This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.

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Published by the University of London Press © University of London 2006. Reformatted and reprinted 2010 Printed by Central Printing Service, University of London

All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.

Labour law page i

Contents

1 Introduction 1

1.1 Why study Labour law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.2 Aims and objectives of the course . . . . . . . . . . . . . . . . . . . . . . . 3

1.3 How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.4 Current examination format and techniques . . . . . . . . . . . . . . . . . 4

1.5 Course reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.6 Plan of the guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.7 Glossary of abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2 The contract of employment 7

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2.1 Definition of the contract of employment . . . . . . . . . . . . . . . . . . . 9

2.2 Express terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

2.3 Implied terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

2.4 Variation and enforcement . . . . . . . . . . . . . . . . . . . . . . . . . .13

3 Statutory employment rights 19

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

3.1 The regulation of wages . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

3.2 The regulation of working time . . . . . . . . . . . . . . . . . . . . . . . .22

3.3 Time off rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

3.4 Flexible working rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

4 Discrimination 29

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

4.1 Prohibited grounds of discrimination . . . . . . . . . . . . . . . . . . . . .31

4.2 Forms of discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

4.3 Prohibited discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . .35

4.4 Pay discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

5 Dismissal and the common law 41

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

5.1 Dismissal: the basic principles . . . . . . . . . . . . . . . . . . . . . . . . .43

5.2 Wrongful dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

5.3 Remedies for wrongful dismissal . . . . . . . . . . . . . . . . . . . . . . .44

6 Statutory protection from dismissal 49

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50

6.1 The basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51

6.2 Fairness of dismissals: ‘disciplinary’ dismissals . . . . . . . . . . . . . . . . .53

6.3 Redundancy and other economic dismissals . . . . . . . . . . . . . . . . .54

6.4 Transfers of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . .56

7 Collective bargaining 61

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62

7.1 Trade union membership and activities . . . . . . . . . . . . . . . . . . . .63

7.2 Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

7.3 Union recognition in context . . . . . . . . . . . . . . . . . . . . . . . . .66

page ii University of London External System

8 Industrial action 69

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70

8.1 Trade unions and the right to strike: tortious liabilities . . . . . . . . . . . .71

8.2 Trade unions and the right to strike: statutory immunities and their loss . . .72

8.3 Industrial action and the individual employee. . . . . . . . . . . . . . . . .74

Feedback to activities 77

Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79

Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81

Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83

Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86

Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89

Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91

Contents

1.1 Why study Labour law? . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.2 Aims and objectives of the course . . . . . . . . . . . . . . . . . . . . . 3

1.3 How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . 3

1.4 Current examination format and techniques. . . . . . . . . . . . . . . . 4

1.5 Course reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.6 Plan of the guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.7 Glossary of abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . 5

1 Introduction

University of London External System

Labour law 1 Introduction page 3

1.1 Why study Labour law?

Labour law is concerned with the regulation of employment, that is, the regulation of relationships between:

i. employers and workers

ii. employers and trade unions

iii. trade unions and their members.

The subject is a very important one both practically and, at a more theoretical level, in understanding the politics of the country whose labour law is studied. It is of particular interest to those students also interested in politics or economics.

1.2 Aims and objectives of the course

The course aims to provide students with a solid grounding in labour law. It does not set out to cover the subject comprehensively. Rather, it attempts to give you a strong, critical grasp of some of the important issues which arise in the area, as well as a broad picture of the shape of the subject in general.

The objectives of the course are to enable students:

u to understand the legal framework within which UK labour law operates, with emphasis on contextual elements such as industrial relations, employment practice, the impact of economic, social and political policy, and the impact of membership of the European Union

u to identify and critique the nature and scope of problems or disputes faced by employing enterprises and employees/workers that may be the subject of legal resolution or otherwise

u to understand, evaluate and apply the legal rules and concepts regulating employment relationships at both collective and individual levels

u to appraise the effectiveness of the law in regulating industrial relations and individual employment relationships.

1.3 How to use this subject guide

This guide is a suggested outline of your reading for the main topics falling within the Labour law syllabus. Under no circumstances should you regard it as playing the role of a textbook.†

You should work through the subject guide from start to finish. Each chapter sets out to outline the main elements in the subject area covered, but you will not have any real grasp of these subjects unless you read all of the Essential reading together with a fair proportion of the additional cases and Further reading (some of these readings are referred to repeatedly). You should attempt to answer the questions provided throughout each chapter and, once you have read all the material required in each chapter, you should attempt to answer the Sample examination questions provided. If you experience undue difficulty, re-read the recommended material using the text in the chapter as a guide. Learning outcomes listed in the chapter give you an easy means of checking how well your knowledge and understanding have developed.

Internal students are expected to spend about ten hours per week on Labour law, over a period of about 24 weeks, plus about 60 hours’ revision – a total of about 300 hours.

† You should focus your study around your textbook, Collins, H., K.D. Ewing and A. McColgan, Labour Law: Text and Materials. See section 1.5.


1.4 Current examination format and techniques

Examination is by one three-hour paper which combines essay-type with problem-type questions. You will be allowed to take a statute book into the examination: the up-to-date Blackstones Employment Law Statutes or the Butterworths Employment Law Student Statutes or Employment Law Handbook are all acceptable.

As far as examination technique is concerned, you must:

u read each question on the paper thoroughly and at least once, before you begin to write anything

u once you have decided which questions to attempt, write a plan of your answer

u answer the question as it is asked. Do not, under any circumstances, simply write down all that you know about the subject to which the question relates. Many students make this mistake when answering essay questions, so be particularly on your guard when you are writing essays. However, the same rule applies to problem answers

u try to be as clear and concise as possible in your answers. This applies as much to how you write as to what you write. Nothing is more infuriating for an examiner than struggling with illegible writing.

u be strict with yourself about time. Once you have read the questions and have decided which to answer, divide the remaining time into four equal parts and try not to exceed your allowance for each question by more than a few minutes. Otherwise, your final, rushed answer may cost you one or more grades in the examination result.

For further advice on examination technique see the Advice on answering the sample examination questions throughout.

1.5 Course reading

The core textbook for this subject is:

¢ Collins, H., K.D. Ewing and A. McColgan Labour Law: Text and Materials. (Oxford: Hart Publishing, 2005) second edition [ISBN 1841133620].

In the remainder of this guide we will refer to this text as ‘Collins, Ewing and McColgan’.

You may also find it useful to read the latest editions of:

¢ Deakin, S. and G.S. Morris Labour Law. (Oxford: Hart Publishing, 2005) [ISBN 1841135607].

¢ Thomas, G. (ed.) Industrial Law. (London: LexisNexis, 2003) eighth edition [ISBN 0406963819].

These books are regularly updated and it is always useful to check what is the most recent edition.

You should read Chapter 1 of Collins, Ewing and McColgan before you start to work through the subject guide.

1.6 Plan of the guide

Chapter 2 deals with the contract of employment, outlining the nature and role of express and implied contractual terms and the issues surrounding the variation and enforcement of contractual employment terms.

Chapter 3 considers various statutory employment protections, including the national minimum wage and the regulation of working time, together with various time off rights.

Labour law 1 Introduction page 5

Chapter 4 deals with the area of discrimination law, an increasingly complex subject over recent years, and tries to give a principled outline of this difficult area.

Chapters 5 and 6 deal with dismissal: Chapter 5 with contractual issues relating thereto, and Chapter 6 with statutory protection.

Chapter 7 considers the role of collective bargaining: the extent to which employers can be required to engage in such bargaining and in the exchange of information, etc., with their employees.

Chapter 8 concludes by looking at industrial action: the liabilities faced by trade unions and individuals who participate in such action and the extent to which statute provides protection from such liabilities.

1.7 Glossary of abbreviations

AC Law Reports: Appeal Cases

All ER All England Law Reports

CA Court of Appeal

CAC Central Arbitration Committee

Ch Law Reports: Chancery Division

DDA Disability Discrimination Act 1995

EAT Employment Appeal Tribunal

EC European Community

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECJ European Court of Justice

ELR European Law Reports

ERA Employment Rights Act 1996

EqPA The Equal Pay Act 1970

ET Employment tribunal

EU European Union

GOQ Genuine Occupational Qualification

GOR Genuine Occupational Requirement

HL House of Lords

ICR Industrial Case Reports

IER Institute of Employment Rights

IRLR Industrial Relations Law Reports

ITR Industrial Tribunal Reports

KB Law Reports: King’s Bench Division

NMW National Minimum Wage Act 1998

QB Law Reports: Queen’s Bench Division

RB Regs Employment Equality (Religion or Belief) Regulations 2003

RRA Race Relations Act 1976

SDA Sex Discrimination Act 1975


SO Regs Employment Equality (Sexual Orientation) Regulations 2003

TEC Treaty Establishing the European Community

TULRCA Trade Union and Labour Relations (Consolidation) Act 1992

TUPE Transfer of Undertakings (Protection of Employment) Regulations 1981

WLR Weekly Law Reports

Your next step: u Read Chapter 1 of Collins, Ewing and McColgan.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2.1 Definition of the contract of employment . . . . . . . . . . . . . . . . . 9

2.2 Express terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

2.3 Implied terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

2.4 Variation and enforcement. . . . . . . . . . . . . . . . . . . . . . . . .13

2 The contract of employment


Introduction

The contract of employment is the cornerstone of the employment relationship. It outlines many of the rights and obligations of the employment relationship. Further, it provides the basis on which the structure of statutory protection is built. Statutory protections provide a floor of employment rights. But in many cases they are conditional on the existence of a contract of employment (rather than, for example, on a contract for services). Further, their operation depends on contractual notions such as contractual termination (dismissal) and can be blocked by contractual concepts such as frustration.

This chapter considers the definition of the contract of employment, the content of the contract (that is, the source of express terms and the source and content of typical implied terms). It also provides an introduction to questions of enforcement, though these are for the most part dealt with in Chapter 3, which covers contractual questions arising from dismissal.

Learning outcomesBy the end of this chapter and the relevant readings you should be able to:

u explain the main tests which distinguish between a contract of employment (also known as a contract of service) and a contract for services or other non-employment form of relationship

u explain in outline why this distinction matters

u outline the main sources of express contractual terms

u distinguish between a statement of written particulars and a contract of employment

u list the different types of implied terms which apply in the employment context and the main implied terms binding employers and employees

u explain the relationship between express and implied terms in the context of employment

u describe how an employer may lawfully alter the terms and conditions under which an employee works

u explain how an employee who wishes to resist such changes might do so.

Labour law 2 The contract of employment page 9

2.1 Definition of the contract of employment

Essential reading ¢ Collins, Ewing and McColgan, Chapter 2: ‘The employment relation’, sections 2.1,

2.7.

¢ Cases: Allonby v Accrington College [2004] ICR 1328; Carmichael v National Power plc [1999] ICR 1226; Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1437; Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612; O’Kelly v Trusthouse Forte plc [1983] ICR 728.

The employment relationship is founded upon the ‘contract of employment’, so no-one is properly regarded as an ‘employee’ unless he or she is employed under a contract of employment (otherwise known as a contract of service and distinguished from a contract for services). Many employment rights (the right to claim unfair dismissal and redundancy, for example) are dependent upon the worker qualifying as an employee. In addition, the question whether or not an employee has been dismissed will turn in part on the contract of employment.

Yet the definition of a ‘contract of employment’ is far from clear and, worse still, the tests applied often vary between the courts which apply labour law and the bodies charged with determining whether or not someone is an employee for tax or social security purposes. Happily, you only have to grapple with the tests which have developed from the ‘mixed test’ applied by the Court of Appeal in Ready Mixed Concrete through the decisions of the Employment Appeal Tribunal in Nethermere (St Neots) Ltd v Gardiner and O’Kelly v Trusthouse Forte and, most recently, of the House of Lords in Carmichael v National Power.

Recent interesting developments include the decision of the Court of Appeal in Dacas, while the decision of the ECJ in the Allonby case casts doubt on the lawfulness as a matter of European law of the restriction of employment rights to ‘employees’ alone. This may have important implications for future developments.

Activity 2.1Alice is a worker who is supplied by an agency which directly pays her wages to a contracting company, which is responsible for determining her conditions of employment and hours of work and disciplinary issues relating to her, and at which she has worked for 12 years continuously before it decides to ‘let her go’.†

a. Decide who is likely to be Alice’s employer.

b. Suggest alternative footings upon which the employment relationship might be based and list the possible advantages and disadvantages each might have over the existing situation.

c. Prepare a list of factors likely to point towards employment status, and a list of factors likely to be regarded as inconsistent with that status.

Feedback: see end of guide.

SummaryIt is frequently important to be able to determine whether a worker is properly classified as an ‘employee’ or not. The answer to this is far from straightforward in many cases, and can only finally be determined by the court. Guidance is, however, available from the case law discussed above and in more detail in the reading.

† ‘Let someone go’: a euphemism for dismissal or ‘sacking’.


Self-assessment questions1. Why is it important to determine whether or not a worker is employed under

a contract of employment? (You should consider the types of statutory rights which are, and those which are not, dependent on employee status.)

2. What are the main tests applied in determining this issue? (See O’Kelly and Nethermere as applied by the House of Lords in Carmichael.)

3. What is the significance of the decision of the ECJ in Allonby? (See in particular the discussion of ‘employee’ versus ‘worker’ as the basis of protection for European law purposes, in Chapters 3 and 4.)

4. How does the classification of the employment relationship help the employer to achieve flexibility? What are the costs to workers? (This calls for consideration of what employers might gain by avoiding, for example, liability for unfair dismissal.)

5. What is the purpose of section 23 Employment Relations Act 1999?

Useful further reading ¢ Hepple, B. ‘Restructuring employment rights’ 15 Industrial Law Journal 69, 1986,

especially pp.69–75.

2.2 Express terms

Essential reading ¢ Collins, Ewing and McColgan, Chapter 2: ‘The employment relation’, sections

2.4.3–5, 2.6.2; Chapter 10: ‘Restructuring the business’, section 10.1.2.

¢ Cases: Anderson v Pringle [1998] IRLR 64; Gascol Conversions Ltd v Mercer [1974] ICR 420; NCB v NUM [1986] ICR 736; Robertson v British Gas Corporation [1983] ICR 351; Secretary of State v ASLEF (No. 2) [1972] 2 QB 455; Singh v BSC [1974] IRLR 131; Taylor v Secretary of State for Scotland [2000] ICR 595.

Contracts of employment, like all other contracts, consist of express and implied terms. The express terms are those terms to which the parties have actually agreed (although, of course, agreement can be shown by signing a contractual document without reading its terms, or by acting in a particular way without actually intending to signify agreement). Implied terms, which you will also have come across in your Elements of the Law of Contract course, are inserted by the courts for a variety of reasons. They are dealt with below.

The questions which arise with express terms relate primarily to what those terms are. In contrast with many other types of contract, the express terms of contracts of employment are rarely to be found in one place: because contracts of employment subsist over long periods of time, their terms are frequently to be found in a variety of different documents and verbal agreements as well as in the formal ‘contract’, if indeed there is any such document.

Few employees actually have a formal written ‘contract’, although employers are required to issue all employees with a written statement of their important contractual terms (ss.1–7 Employment Rights Act 1996). You need to be familiar with the contractual terms that must be included in this statement.† But it is also important to bear in mind that, unless the parties to the contract of employment demonstrate otherwise, the statement of written particulars is not itself the contract of employment – it is just the employer’s statement of what he or she believes the various terms of the contract to be. The written statement is only evidence of the various contractual terms and, unless the employee has agreed that it accurately represents those terms (usually by signing the statement as a contract of employment – see Gascol Conversions Ltd v Mercer, discussed in Collins, Ewing and McColgan section 2.6.2), it is not binding on the employee.

† Look up the items that must form part of the written statement and list them in your notebook.


If there is no written contract of employment, or if any such contract is incomplete, where are the express terms of the employment contract to be found?

The most important source of contractual terms for most public sector employees is the collective agreement between their employers and a trade union, whether or not the employee is a member of that trade union. Collective agreements cover markedly fewer private sector employees. Collectively agreed terms cannot bind third parties (i.e. employees, whether or not they are union members) in the absence of their agreement, but collectively agreed terms may be incorporated into individuals’ contracts of employment either expressly or impliedly. An example of express incorporation can be seen in Anderson v Pringle. Implied incorporation is more difficult – see Singh v BSC for a case in which the court refused to find that such incorporation had occurred. Nor are all contractual terms suitable for incorporation – see NCB v NUM for the distinction between those terms which are and are not appropriate for incorporation.

Collective agreements are not the only source of contractual terms. As with any other contract, the express terms consist of those agreed to by the parties whether verbally or in writing (though it will be difficult to prove the existence of verbally agreed terms in case of dispute). Among the places where contractual terms might be found are letters of appointment (see Robertson v British Gas) and oral or written agreements either prior to or during the course of employment. More recently, the House of Lords has accepted that terms may be incorporated from equal opportunities policies – see Taylor v Secretary of State for Scotland. Another possible source of contractual terms is the company rule book, though this is for the most part the employer’s statement of how it will exercise its managerial prerogative and (see Secretary of State v ASLEF) is certainly not to be regarded as contractual in its entirety.

Activities 2.2–2.42.2 Draw up a model statement of written particulars for Bob, a supermarket

cashier, including all the information required by s.1 ERA.

2.3 List the sources of any additional express contractual terms of employment that might be applicable to Bob.

2.4 Describe the relationship between the contract of employment and the written particulars of employment.


SummaryExpress contractual terms are those which have been explicitly agreed – whether in writing or otherwise – between the parties to a contract. These should be evidenced in the written statement of particulars which an employer is obliged to provide to employees but they may also be found in sources as diverse as the letter of appointment and any collective agreement applicable to the employee (whether or not she is a member of the trade union).

Self-assessment questions1. Under what circumstances are terms of collective agreements legally

enforceable?

2. What is the relationship between the statement of written particulars and the ‘contract of employment’? When are the two one and the same?


2.3 Implied terms

Essential reading ¢ Collins, Ewing and McColgan, Chapter 2: ‘The employment relation’, sections 2.2,

2.3, 2.5, 2.6.1, 2.6.3, 2.6.6.

¢ Cases: Bliss v South East Thames Regional Health Authority [1987] ICR 700; Faccenda Chickens v Fowler [1986] ICR 297; Johnson v UNISYS [2003] 1 AC 518; Johnstone v Bloomsbury Health Authority [1991] ICR 269; Mahmoud v Bank of Credit and Commerce International SA [1998] AC 20; Scally v Southern Health & Social Services Board [1991] ICR 771; Secretary of State v ASLEF (No. 2) [1972] 2 QB 455; Sim v Rotherham Borough Council [1986] ICR 897; Spring v Guardian Assurance plc & ors [1994] ICR 596; Ticehurst v British Telecommunications [1992] ICR 383; United Bank Ltd v Akhtar [1989] IRLR 507; William Hill Organisation Ltd v Tucker [1999] ICR 291.

Implied terms are those terms which are inserted by the courts to fill the gaps left by the express terms to which the parties actually agreed. Contracts of employment are peculiarly reliant upon implied terms because they subsist over such long periods of time (during which events are likely to occur which have neither been foreseen nor provided for in advance by the parties). Terms may be implied:

u on the basis that they are necessary and the parties would either have agreed to them had they thought of them at the time of contracting – or, more controversially, would have done so had they been behaving reasonably

u from custom and practice, although the test for this is not easy to satisfy.

In addition, the courts have become increasingly ready to insert terms into the contract of employment not, as was traditionally the rationale behind implied terms, on the assumption that the parties would have included these terms had they thought about it at the time, but, rather, because these are the type of terms which a contract of employment should contain.

Among the commonly implied terms are:

u the employee’s duties of:

u co-operation (Cresswell v Inland Revenue)

u confidentiality (Faccenda Chickens v Fowler)

u fidelity (Secretary of State v ASLEF, Ticehurst v BT)

u the employer’s duties:

u to safeguard employees’ health and safety (Johnstone v Bloomsbury Health Authority)

u to provide employees with necessary information about their contractual rights (Scally v Southern Health & Social Services Board)

u to exercise due care in drawing up any references supplied (Spring v Guardian Assurance)

u (increasingly) to provide employees with work (William Hill v Tucker)

u and, most important of all, not to act in such a manner as to destroy the trust and confidence which should exist between employer and employee (United Bank Ltd v Akhtar, Bliss v South East Thames).

This last term has become of overarching importance in recent years but for the limits of its onward march, see the decision of the House of Lords in Johnson v UNISYS.

The general view is that, because implied terms can do no more than to fill the gaps left by the express agreement of the parties, implied terms can never contradict expressly agreed terms. To see how close the courts have come to overriding this in the context of employment see Johnstone v Bloomsbury Health Authority and United Bank v Akhtar.


Activity 2.5a. List the most significant implied terms binding (i) employers and (ii) employees.

b. Write a memo describing the extent to which implied terms can modify or restrict the application of express terms.

c. List at least four different applications in the case law of the implied terms of mutual trust and confidence (hint: Akhtar illustrates one, Bliss another).

d. What role is played by implied terms in regulating the employment relationship?

e. How does the decision of the house of Lords in Johnson v UNISYS limit the application of the implied term of mutual trust and confidence?


SummaryImplied terms have a very important role to play in the contract of employment, filling in many of the gaps inevitably left by expressly agreed terms and, contrary to the orthodox view of the role of implied terms, in some cases modifying the operation of express contractual terms.

Useful further reading ¢ Lindsay, Mr Justice ‘The implied term of trust and confidence’ Industrial Law

Journal , 30(1) 2001 pp.1–16.

¢ Brodie, D. ‘Mutual trust and the values of the employment contract’ Industrial Law Journal 30(1) 2001, pp.84–100.

Reminder of learning outcomesBy this stage you should be able to:

u explain the main tests which distinguish between a contract of employment (also known as a contract of service) and a contract for services or other non-employment forms of relationship

u explain in outline why this distinction matters

u outline the main sources of express contractual terms

u distinguish between a statement of written particulars and a contract of employment

u list the different types of implied terms which apply in the employment context and the main implied terms binding employers and employees

u explain the relationship between express and implied terms in the context of employment.

2.4 Variation and enforcement

Essential reading ¢ Collins, Ewing and McColgan, Chapter 10: ‘Restructuring the business’, section

10.1.

¢ Cases: Cresswell v Board of the Inland Revenue [1984] IRLR 190; Gunton v London Borough of Richmond-upon-Thames [1980] ICR 755; Hughes v Southwark London Borough Council [1988] IRLR 55; Marley v Forward Trust Group [1986] ICR 115; Rigby v Ferrodo [1988] ICR 29; Singh v BSC [1974] IRLR 131; White v Reflecting Roadstuds Ltd [1991] IRLR 331.


We have already come across the issue of variation in cases such as Singh v BSC (see also Marley v Forward Trust). Employers are not entitled unilaterally to alter employees’ contractual terms. On the other hand, employers may be able to require alterations in the way in which employees work either where these alterations fall within the scope of the employees’ duty of co-operation (Cresswell) or where they are permitted by some express contractual term (United Bank v Akhtar, White v Reflecting Roadstuds).

A unilateral attempt by an employer to force through contractual change in the absence of agreement on the part of his or her employees will amount to a breach of contract, just as a refusal on the part of an employee to abide by his or her contractual terms would amount to a breach. How may the contract of employment be enforced in such cases? The normal contractual position is that, in a situation where one of the parties breaches one or more contractual terms, the other party may choose to:

u affirm the contract (that is, continue to perform his or her contractual obligations) and sue the other party for damages

u or, providing that the breach is sufficiently serious, treat the contract as at an end and sue for damages.

These rules generally apply as far as the contract of employment is concerned: where, for example, an employer commits a breach of contract by failing to pay wages the employee may continue to work for the employer and may sue for damages in respect of the unpaid wages (see Rigby v Ferrodo); or the employee may choose to treat the contract as at an end, claim constructive dismissal (see Chapter 5) and sue for the unpaid wages and for any other damages arising from the dismissal. Alternatively, the employee may seek an injunction to prevent continuing breach of contract by the employer (Hughes v Southwark). Where the employee breaches the contract the employer may equally choose to continue with the employment relationship and sue for damages (although this is very rare in practice) or to treat the contract as at an end and to sue (again, suit for damages on the part of employers is rare as employees are generally not worth suing). The only point to take note of here is that, even if the employer terminates in response to the employee’s breach of contract, the employee is still regarded as dismissed as a matter of law. Whether he or she will be regarded as unfairly or wrongfully dismissed is, however, another question which will be considered in Chapters 4 and 5.

The difficulty which does arise relates to employers’ attempts to dismiss employees in breach of their contracts of employment. Where an employer informs an employee that he or she is dismissed in a situation in which the contract of employment does not permit such a dismissal (where inadequate notice is given, for example, or dismissal occurs without the employer having put into action a disciplinary procedure required by the employee’s contract) the dismissal itself will be a breach of contract by the employer. This being the case, the normal rule is that the employee remains free:

u either to accept the employer’s breach, consider him or herself dismissed and sue for damages

u or to affirm the contract, refuse to accept the dismissal and continue to regard him or herself as employed (see Gunton v Richmond-upon-Thames).

This issue is considered further in Chapter 4.

Activities 2.6–2.92.6 You are asked to advise Albert, whose employer has told him that his hours of

work and pay are to be reduced by 20 per cent. Consider what questions you will need to ask to determine whether there has been any actual or threatened breach of contract by the employer.

2.7 Explain the difference between the unilateral and elective theories as they apply to dismissal in breach of contract. What does the partial survival theory add?


2.8 To what extent can employers force changes onto workers?

2.9 What is the effect on the contract of employment of unilateral changes imposed by an employer?


Self-assessment question1. What is the legal status of a company rule book?

2. When may an employer change the express terms of a contract without breaching the contract?

Sample examination questionsQuestion 1 Critically evaluate the tests which the courts use to determine whether a worker is an employee for the purposes of employment protection legislation.

Question 2 Describe the operation in the contract of employment of express and implied terms. To what extent can implied terms control the operation of express terms (a) during, and (b) at the termination of employment?

Question 3 How far, if at all, have implied terms developed over recent years to provide effective protection to employees?

Question 4 How can the contract of employment lawfully be varied? Does the existing law adequately respond to the need of employers for flexibility in working conditions, and adequately protect workers who do not want to have their terms of employment changed?

Question 5 ‘In determining who is an “employee”, the courts have tended to swing between a contractual approach and one which is sensitive to the social policy aim of distinguishing the genuinely independent worker from the worker requiring employment protection.’

Is this a valid criticism of the case law? How successfully have recent statutes broadened the personal scope of employment protection laws?

Question 6 What is the relationship in contracts of employment between express and implied contractual terms? How has the law in this area developed in recent years?

Advice on answering the questionsQuestion 1 This question† calls for a review of the rules distinguishing ‘employees’ employed under contracts of employment or of service from ‘workers’ employed under contracts for services. A good answer would take into account the historical tests (control and integration) and note the mixed test (Ready Mixed Concrete) and the rise of ‘mutual obligation’ (Kelly, Nethermere, Carmichael). It would point out the shortcomings of the current approach (in particular the potential for employee abuse since the employer can avoid incurring obligations in order to avoid incurring statutory responsibilities towards workers). It would also note when the test is applied (i.e. in relation to unfair dismissal and redundancy but not working time or discrimination other than that connected with trade union status) and perhaps suggest an alternative approach which might be adopted by the courts or the legislature.

Question 2 A good answer to this question would begin with an introduction which outlined in brief the meaning of express and implied employment terms and the way in which they relate to each other as a matter of orthodox contract law. It would then go on to consider the operation of implied terms – in particular the implied term relating to mutual trust and confidence, and explain that the development of this term has begun to cast doubt, in the employment context, on that orthodoxy inasmuch as the courts have permitted the operation of express terms to be regulated by the implied term relating to mutual trust and confidence.

† Note that you are asked to critically evaluate the tests.


The discussion of the operation of implied terms on express terms during employment might be expected to focus on decisions such as United Bank v Akhtar and Johnson v Bloomsbury, perhaps in conjunction with a selection of more recent authorities, in which the courts have limited the operation of express contractual terms. The issue which arises in relation to the termination of employment is, most significantly, the decision of the House of Lords in Johnson v UNISYS in which their Lordships refused to allow the operation of the implied term relating to mutual trust and confidence to give rise to a claim for damages for the manner of dismissal. Some consideration of this case would be expected together with, in a good answer, some conclusion as to why the courts have restricted the development of the implied term in this particular context.

Question 3 This is a fairly general question on implied terms and gives you a fair degree of scope to create your own answer. Among the issues which ought to be addressed are:

1. the range of implied terms as they protect employees

2. the extent to which they are balanced by terms imposing obligations on employees

3. the development of the implied term relating to mutual trust and confidence, as this is the most significant term protective of employees and to some extent appears to be swallowing up other implied terms

4. the extent to which implied terms – and particularly that relating to mutual trust and confidence – regulates the express terms of employment

5. the restrictions recently imposed by the House of Lords in Johnson v UNISYS on the operation of the implied term relating to mutual trust and confidence in the context of dismissal.

A good answer would address most of these areas before reaching some conclusion as to how effective the protection outlined is.

Question 4 This question first calls for an introductory section on the circumstances in which contracts of employment can lawfully be varied before asking for a critical engagement with that legal position. The answer is that contracts of employment – like other contracts – can only be varied by agreement. However, many contracts are inherently flexible inasmuch as they incorporate collective change mechanisms (collective agreements). Further, many terms of employment are not regarded as contractual but as entailing the exercise of managerial discretion and are therefore subject to change at the behest of the employer.

Does the existing law adequately respond to the need of employers for flexibility in working conditions? An answer to this entails recognition of the situation outlined above and of the fact that contracts of employment can generally be terminated by notice with the effect that no wrongful dismissal claim will succeed unless the employer has simply forced through change without formal dismissals in which case the employees might successfully claim constructive dismissal. Even damages for wrongful dismissal, however, is likely to result in little more than pay in respect of the proper notice period. An unfair dismissal claim is possible but more than likely will be successfully defended on the basis that there was some other substantial reason for dismissal. However, Rigby v Ferodo and sections 1–8 of the Employment Rights Act 1996 demonstrate that employers need to be careful about imposing unilateral changes especially in relation to wages.

This suggests that there is little protection for employees who – although their contracts cannot in theory be varied without their consent – can nevertheless find themselves jobless without recourse to significant remedy.


Question 5 This question asks for a focused discussion of the case law concerning the definition of ‘employee’. The ERA defines ‘employee’ as someone working under a contract of employment or service, as distinct from a contract for services or otherwise. A good answer should discuss the historical development of the law in this area very briefly (control/integration/mixed test) before discussing in some more detail the ‘mutuality of obligation’ test established in Nethermere and O’Kelly and applied by the House of Lords in Carmichael. Remember, however, to answer the question, and the theme you will need to focus on is whether you agree with the swing suggested by the question. Some evidence of it might be found in the recent cases concerning agency workers in which some sympathy has been shown by the courts (which have however tended to maintain a fairly strict contractual approach) as well as in cases such as Lane v Shire Roofing in which health and safety was at stake.

As to the second part of the question, this only requires a brief résumé of the recent trend to providing rights to ‘workers’ or (as in the recent discrimination provisions) ‘employees’ defined to include anyone working under a contract personally to perform any work or service (a definition which covers many independent contractors). While a broad approach has always been taken in the discrimination context it has recently been applied also to the NMW and working time regulation, though not in relation to fixed term workers or parental/maternity leave. Some mention should ideally be made of s.23 ERA.

Question 6 This calls for a discussion of the orthodox position (that implied terms fill the gaps left by express terms) and a recognition that, in the context of contracts of employment, this position has been significantly compromised by the growth, in particular, of the implied term relating to mutual trust and confidence. A good answer to this question would discuss cases such as United Bank v Akhtar and Johnstone v Bloomsbury, in which the courts have allowed implied terms to regulate the exercise of express contractual powers by the employer; also the duty of fidelity as it has been applied in cases such as Secretary of State v ASLEF and Ticehurst v BT. It would then draw some conclusions as to where this leaves the contract of employment by comparison with the more general approach to contract.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

3.1 The regulation of wages . . . . . . . . . . . . . . . . . . . . . . . . . .21

3.2 The regulation of working time . . . . . . . . . . . . . . . . . . . . . .22

3.3 Time off rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

3.4 Flexible working rights . . . . . . . . . . . . . . . . . . . . . . . . . . .24

3 Statutory employment rights


Introduction

Statutory regulation of the employment relation has become increasingly important over recent decades with the decline of collective bargaining and the increasing influence of European law. Much of this influence is seen in the discrimination law provisions, which are discussed in Chapter 4. But it is also manifested in provisions regulating working time and parental leave, which are discussed here, as are aspects of home-grown regulation such as minimum wage regulation. Also of great practical significance is the law relating to health and safety which is outside the scope of the syllabus.

Learning outcomesBy the end of this chapter and the recommended reading you should be able to:

u summarise the extent to which UK law regulates the payment of wages

u detail the extent to which the Wages Act 1986 prohibits deductions from wages

u explain the main provisions of the statutory entitlement to maternity and parental leave

u critically evaluate the Part-time Workers Regulations

u explain the operation of the Working Time Regulations.

Labour law 3 Statutory employment rights page 21

3.1 The regulation of wages

Essential reading ¢ Collins, Ewing and McColgan, Chapter 2: ‘The employment relation’, sections 2.2.1

and 2.2.2; Chapter 4 ‘Protecting the work/life balance?’, section 4.5.

¢ Cases: Miles v Wakefield Metropolitan District Council [1987] ICR 368; Rigby v Ferrodo [1988] ICR 29; Ticehurst v British Telecommunications [1992] ICR 383; Wiluszynski v LB of Tower Hamlets [1989] IRLR 259.

The UK was, until very recently, one of the few developed countries in which wages were regulated neither by a legal minimum wage nor by high levels of collective bargaining. This all changed with the implementation of the National Minimum Wage Act 1998. The Act operates by imposing a minimum wage which is enforceable by an Inspectorate and as an implied term of contract by workers themselves. The main criticisms levied at the minimum wage have related to its relatively low level and its limited application (and application at a lower rate) to younger workers.† Early predictions that it would impact on employment rates appear not to have been fulfilled. The Act and associated Regulations deal variously with ‘time work’, ‘output work’ and ‘unmeasured work’.

The other statutory protection of wages consists in ss.13–27 ERA (formerly the Wages Act 1986), which prohibit unauthorised deductions from wages. The first important restriction on the protection afforded by ss.13–27 ERA consists of its non-application to deductions made on account of industrial action – see Miles v Wakefield, Wiluszynski v Tower Hamlets for the employer’s contractual powers in this respect. It is important to note here that, as we saw in Chapter 2, breach of implied duties such as fidelity can also amount to breach of contract by the employee (see British Telecom v Ticehurst). Such a breach will also entitle the employer to make deductions in line with Miles and Wilsuzinski. Secondly, the protection of the ERA does not extend to deductions made from, or total non-payment of, monies due in respect of any notice period. This particular restriction has been of less importance, however, since the jurisdiction of the industrial tribunals was extended in the wake of the Trade Union Reform and Employment Rights Act 1993 to cover contractual claims such as a claim for pay in lieu of notice which arise on the termination of employment.

In addition to the statutory protections available in respect of the payment of wages, contract provides that, where one of the parties breaches one or more contractual terms, the other party may continue to perform his or her contractual obligations and sue the other party for damages or, providing that the breach is sufficiently serious, treat the contract as at an end and sue for damages. These rules apply to permit an employee to continue to work for the employer and sue for damages in respect of the unpaid wages in a case in which the employer breaches the contract by reducing wages unilaterally (see Rigby v Ferrodo).

Activities 3.1–3.23.1 Find out what the current rates of the NMW are and to whom they apply.

3.2 Prepare a short verbal presentation explaining employers’ ability to penalise limited industrial action by withholding wages.


SummaryUK law imposes a national minimum wage under the 1998 Act, and, in addition, provides workers with protection against unauthorised deductions from their wages.

† The minimum wage is paid at a reduced rate in the case of workers aged under 22 and in some training contexts, and was inapplicable until October 2005 to those aged 16–17.


Self-assessment questions1. How may an employee challenge a unilateral pay cut by the employer (a) under

the ERA, and (b) at common law?

2. How is the NMW enforced?

3. What is the present rate of the NMW for those over 21?

3.2 The regulation of working time

Essential reading ¢ Collins, Ewing and McColgan, Chapter 4: ‘Protecting the work/life balance?’,

sections 4.1, 4.2 and 4.5.

¢ Cases: Landeshauptstadt Kiel v Jaeger [2003] ECRI-08389; Simap v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] ECR I-7963, [2000] IRLR 845.

The regulation of working time – in particular, the protection of workers against over-long working hours – has increasingly become a concern over recent years, not least in the UK whose workers have the longest average hours in the EU.

The Regulations impose limits on maximum daily and weekly hours and night work and entitle all workers to a minimum four weeks’ annual paid leave. In their original form they excluded many workers from their scope but many of these have subsequently been brought within the Regulations. The Regulations operate through workforce agreements or, by way of default, through detailed provisions set out therein. Their most controversial aspect is the scope they provide for ‘contracting out’ and their limited application to ‘voluntary’ overtime work. At European level much attention has been focused on the application of the Directive to ‘on call’ work – see SIMAP and, more recently, the Jaeger case (discussed in Collins, Ewing and McColgan, section 4.5.4). The recent proposals for amendment to the Directive are also discussed there.

The ever-lengthening average hours of full-time workers have been accompanied in the UK, and elsewhere, by an increase in part-time working. Women account for the vast majority (over 80 per cent) of part-time workers, and almost half of all women in the paid workforce work part-time.† The increase in part-time working, and the prevalence thereof, is not evenly spread across industrial or occupational sectors. Many part-time jobs are low-paid and low-status.

At the European level, efforts have been made to increase part-time working as an aspect of ‘flexibility’, which is currently a high priority for the EU. It was in this context that Council Directive 97/81/EC was agreed. The Directive, transposed into the UK by the Part-time Workers Regulations, proscribes some forms of discrimination against part-time workers. It must be understood in conjunction with the prohibitions on indirect sex discrimination, further considered in Chapter 4. Neither the Directive nor the implementing Regulations require that jobs be made available on a part-time basis, though they do prohibit some forms of discrimination against part-time workers who have (narrowly defined) full-time equivalents.

Activity 3.3a. Explain the extent to which the Working Time Regulations protect workers

from excessive hours of work. Are the protections offered by the Regulations sufficient to protect workers?

b. See if you can find out what has happened to the proposals to amend the Working Time Directive so as to alter or remove the ‘individual opt out’ and to deal with its application to ‘on call’ time.

† The typical ‘working family’ pattern in the UK involves men working long full-time hours, and women working relatively short part-time hours.


c. Outline the role played by ‘workforce agreements’ in the application of the Working Time Regulations and explain the relationship between such agreements and (a) collective agreements, and (b) individual opt-outs.

d. Explain the operation of the Part-time Workers Regulations. In particular, to what extent do they require that a part-time worker make his or her claim by reference to a comparator?

e. To what extent is the Part-time Workers Directive, as transposed into domestic law in the UK, adequate to deal with the disadvantages suffered by part-time workers?


SummaryThe Working Time Regulations provide a number of protections from excessive working time, and entitle workers to periods of rest and annual leave. There is a degree of uncertainty at the time of writing over the future content of these Regulations as a result of proposed amendments to the Directive on which they are based. The Part-time Workers Regulations provide part-time workers with some protection from discrimination associated with their part-time status.

Self-assessment questions1. How can employers avoid the application of the 48 hour maximum week?

2. To whom do the Working Time Regulations apply?

3. What is the significance of the SIMAP and Jaeger cases?

4. To what extent are the Part-time Workers Regulations adequate to implement the UK’s obligations in respect of the Directive?

Useful further reading ¢ McColgan, A. ‘Missing the point?: The Part-time Workers Regulations 2000’

Industrial Law Journal 29(3) 2000, pp.260–67.


u summarise the extent to which UK law regulates the payment of wages

u detail the extent to which the Wages Act 1986 prohibits deductions from wages.

3.3 Time off rights

Essential reading ¢ Collins, Ewing and McColgan, Chapter 4: ‘Protecting the work/life balance?’,

sections 4.3–4.3.5.

The Maternity and Parental Leave etc. Regulations 1999 provide that pregnant women employees are entitled to 26 weeks’ ordinary maternity leave (OML) in respect of childbirth. This is paid at 90 per cent of salary for six weeks followed by 20 weeks’ statutory maternity pay.† Those who have 26 weeks’ qualifying employment at the beginning of the fourteenth week before the expected week of childbirth (EWC) are entitled to an additional (unpaid) 26-week AML period. Leave is available to adoptive parents (one of a couple) on an equivalent basis to maternity leave save that there is no enhanced pay for the first six weeks.

† For details of statutory maternity pay, see http://www.dwp.gov.uk/lifeevent/benefits/statutory_maternity_pay.asp


In addition, the Parental Leave Directive, implemented in the UK through the Employment Relations Act 1999 (Schedule 4) and the Maternity and Parental Leave etc. Regulations 1999 provides a right to parental leave for those with children aged under five. The Regulations ought to be read with s.57A Employment Rights Act 1996 which provides a right to (unpaid) time off for domestic emergencies. The Regulations have been criticised on the basis, inter alia, that the leave is unpaid (though two weeks’ paternity leave is payable at the basic rate of statutory maternity pay) and, unless otherwise agreed by the employer, is permitted to be taken only in blocks of between one and four weeks. Proposed extensions of paid maternity leave are likely to involve some period (as yet undetermined) which will be transferable to the mother’s partner.

Activity 3.4a. List the periods of time off, and the rates of pay relevant to each, which are

available in connection with childbirth and parenthood.

b. Try to find out what the current rate of basic statutory maternity pay is.

c. Advise Mary, who is three months pregnant and has been employed for two years, of the notice requirements with which she ought to comply with respect to maternity leave.

d. Try to find out what changes have been made to maternity (or paternity) leave since the publication of this subject guide.

e. Under what circumstances may a person take time off work to look after someone else?

f. Read Qua v John Ford Morrison Solicitors [2003] ICR 482. What does the decision in Qua tell us about the right to emergency leave?


SummaryTime off rights in connection with childbirth include maternity leave, paternity leave, adoptive leave and parental leave. These do not, however, allow the reconciliation of working and family life after one or both parents have resumed work. For this we must turn to the provisions regulating working time and access to flexible work (above and below).

Useful further reading ¢ McColgan A., ‘Family friendly frolics: the Maternity and Parental Leave, etc.

Regulations 1999’ Industrial Law Journal 25(2) 2000 pp.125–44.

¢ Mair, J. ‘Maternity leave: improved and simplified?’ (2000) 63 Modern Law Review 877.

3.4 Flexible working rights

Essential reading ¢ Collins, Ewing and McColgan, Chapter 4: ‘Protecting the work/life balance?’

section 4.3.6.

Section 80F ERA, inserted by the Employment Act 2002, provides that an employee may apply to have his or her terms relating to hours, timing and/or place of work permanently varied in order to care for a child under the age of six (under 18 if the child is disabled).†

† The government announced, in June 2004, its intention to extend this right to carers of elderly or disabled relatives.


An employer who receives an application in the appropriate form must consider it in accordance with a procedure which requires a meeting between employer and employee, the provision of reasons for the employer’s decision and the possibility of an appeal. The employer may reject a request for flexible working on a number of grounds. An employee whose request is refused may complain to an employment tribunal that the appropriate procedure was not followed or that the employer’s refusal was based on ‘incorrect facts’. But the tribunal will not scrutinise whether, in the absence of factual mistakes, an employer’s refusal of a request for contractual change is justified on the grounds given by the employer and the remedy is limited to eight weeks’ pay at a (current) maximum of £270 per week.

Proposals have recently been made to extend the right to request flexible working to the parents of older children and those caring for dependent adults.

Activities 3.5–3.83.5 You are asked to advise Cedric who wishes to work from home two days a

week in order to co-ordinate the care of his young child. What information do you need to obtain from him in order to advise him as to his statutory rights? If he is covered by s.80F ERA, what obligations will a request by him place on his employers?

3.6 Find out what changes, if any, have been made to the scope of the s.80F ERA right since the publication of this subject guide.

3.7 List the grounds upon which an employer may refuse a request for flexible working.

3.8

a. How successful has the right to request flexible working been since its introduction?

b. What are the shortcomings, if any, of the right to request flexible working as a mechanism for allowing workers to balance work and family life?


SummarySection 80F ERA, inserted by the Employment Act 2002, provides that workers are entitled to request changes to the patterns of work in order to accommodate caring responsibilities in relation to young children. The right is, however, a procedural rather than a substantive one.


u explain the main provisions of the statutory entitlement to maternity and parental leave

u critically evaluate the Part-time Workers Regulations

u explain the operation of the Working Time Regulations.

Sample examination questionsQuestion 1 Is part-time work most appropriately regulated as a form of atypical work, or as an element of ‘family-friendly’ employment policies, or as a matter of sex discrimination law?

Question 2 How far is it true to say that British labour law has recognised as basic principles that the working week should be subject to a maximum number of hours and a minimum hourly wage?


Question 3 ‘The “family-friendly” agenda of the UK government exists only in so far as such policies do not interfere with the agenda of promoting business.’

Discuss, with reference to the regulation of maternity leave, parental leave and flexible working rights.

Advice on answering the questionsQuestion 1 A good answer to this question would have started with an introduction touching on the incidence of part-time work together with some information about part-time workers (the fact that they are overwhelmingly female, for example, and that almost 50 per cent of women who work in the UK do so on a part-time basis). It would have mentioned the Part-time Workers Directive and the Part-time Workers Regulations, as well as the extent to which part-time workers have been protected by the Sex Discrimination Act 1975.

Answers should then have moved on to consider the three areas referred to in the question in some more detail. Some issues which might be covered include the following:

Part-time work as a form of atypical work. What is meant by atypical work? Is part-time work properly considered ‘atypical’ if almost one-quarter of the workforce are engaged in it? What other forms of atypical work are there? Is part-time work properly considered alongside forms of atypical work such as fixed-term work, home-working and casual/seasonal work? Are there good reasons (such as the indefinite nature of these other forms of work) which mean that part-time work should be treated as a typical, rather than atypical, form of work? Some discussion of the shortcomings of the Part-time Workers Regulations would be useful, in particular the flaws of that legislation, which requires a comparison with very narrowly defined full-time comparators.

Part-time work as ‘family friendly working’. This calls for some discussion of the typical nature of part-time workers: that is, women working part-time in order to balance work and family life. What are the advantages and disadvantages of dealing with part-time work as an aspect of the work-life balance? This approach to part-time work places it in a spectrum of working from short-hours part-time working to the very long hours associated with (particularly male) full-time workers in the UK. Dealing with part-time work in this context might result in more radical approaches to working hours more generally and a good answer might touch on the inadequacies of the Working Time Regulations which, because of the individual opt-out provision and their non-application to many workers, do little to manage men’s long working hours and so exacerbate the problem that women face in trying to balance work with caring responsibilities.

Part-time work and sex discrimination.† Here some consideration of the strengths and weaknesses of the Sex Discrimination Act as it applies to protect part-time workers is required. Problems with the Act include the fact that only female part-time workers will be protected by the concept of indirect discrimination, though men could challenge discrimination against them as men if they are treated less favourably.

Question 2 This calls for a discussion of the national minimum wage and the Working Time Regulations and, more particularly, the exceptions and qualifications thereto. A good answer would start with a brief introduction to the National Minimum Wage Act and the Regulations, noting that the latter but not the former were required by European law and that the implementation of the Regulations was a fairly minimalist response to the Working Time Directive, particularly insofar as the Regulations take advantage of the individual opt-out.

The next part of a good question would turn in a little more detail to consider the Working Time Regulations.† The focus should be on maximum weekly hours and on the extent to which the Regulations do not regulate this: in particular because of their non-application to particular sorts of workers and to ‘voluntary’ overtime, together with the individual opt out. On the other hand, the Regulations are wide inasmuch as they apply to ‘workers’ rather than ‘employees’.

† You will not be able to attempt the third element of the answer until you have covered the material in the next chapter.

† This should not consist in copying out the provisions of the Regulations from a statute book, or listing them one after the other in summary.


The next aspect of the question should deal with the national minimum wage, again in an analytical way in order to determine how rigorous is the commitment of British labour law to the principle of minimum rates. Among the aspects of the National Minimum Wage Act which might be considered here are the non-application of the wage to young workers, the existence of lower rates for younger workers and trainees, and enforcement mechanisms. Again, however, the Act is wide inasmuch as it applies to ‘workers’ rather than ‘employees’.

A conclusion should balance any criticisms of the Act and Regulations against their overall strengths to reach some kind of answer to the question poised.

Question 3 This requires a discussion of the relevant subject areas (maternity leave, parental leave and flexible working rights) not in general terms but with a focus on the question raised, that is, whether they provide support to the assertion that the UK government’s ‘family-friendly’ agenda ‘exists only in so far as such policies do not interfere with the agenda of promoting business’. In order to do this a critical engagement is required with the various rights, and a good answer would draw out those aspects of each which are supportive of and inconsistent with the statement. Among these would be:

u maternity leave: the applicable notice periods, the fact that maternity pay is low and the cost of it is borne by the state (supportive), on the other hand that the period of leave has been extended over recent years and this trend seems set to continue (unsupportive).

u parental leave: the many procedural restrictions, the fact that leave is unpaid and available only in one week blocks unless the employer agrees otherwise and the fact that the government only acted on parental leave so far as was necessary to comply with EC law (supportive). It is difficult to see any aspect of parental leave at present that is unsupportive of the statement except the bare fact that it exists – which was, in any event, required by EC law.

u flexible working rights: their introduction might be seen as unsupportive of the statement but it is worth stressing that the right is only a right to request, and not to be afforded, flexible working. The right is only a procedural one in that there is no remedy for a refusal, as distinct from a failure to go through the procedure.

Finally, the remedy for procedural breach is minimal.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

4.1 Prohibited grounds of discrimination . . . . . . . . . . . . . . . . . . .31

4.2 Forms of discrimination . . . . . . . . . . . . . . . . . . . . . . . . . .33

4.3 Prohibited discrimination . . . . . . . . . . . . . . . . . . . . . . . . .35

4.4 Pay discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

4 Discrimination


Introduction

Discrimination legislation has become increasingly significant in the regulation of employment over recent years. This chapter is concerned with British anti-discrimination law: that is, with the Equal Pay Act 1970 (EqPA), the Sex Discrimination Act 1975 (SDA), the Race Relations Act 1976 (RRA), the Disability Discrimination Act 1995 (DDA), the Employment Equality (Sexual Orientation) Regulations 2003 (SO Regs) and the Employment Equality (Religion or Belief) Regulations 2003 (the RB Regs).

Learning outcomesBy the end of this chapter and the relevant readings you should be able to:

u describe the grounds upon which discrimination is regulated in the context of employment

u explain what is meant, in particular, by ‘racial grounds’, ‘sex’, ‘disability’ and ‘religion or belief’

u list and explain the various different types of ‘discrimination’ regulated in the context of employment

u distinguish with confidence between ‘direct’ and ‘indirect’ discrimination

u describe the main acts of discrimination regulated in the employment context

u outline the operation of vicarious liability in the discrimination context

u explain the operation of the Equal Pay Act 1970

u outline the main loopholes and flaws in the discrimination legislation

u describe the main differences in approach to discrimination between the DDA and the other discrimination legislation.

Labour law 4 Discrimination page 31

4.1 Prohibited grounds of discrimination

Essential reading ¢ Collins, Ewing and McColgan, Chapter 3 ‘Equality’, sections 3.2, 3.2.

¢ Cases: Dawkins v Department of the Environment [1993] ICR 517; Macdonald v Advocate General for Scotland, Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937; Mandla v Dowell Lee [1983] 2 AC 548; Walker Ltd v Hussain [1996] IRLR 11; Weathersfield v Sargent [1999] ICR 425; Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] ICR 1021.

4.1.1 BackgroundThe regulation of employment-related discrimination in the UK has started from modest beginnings, the Equal Pay Act 1970 having originally been concerned primarily with the prohibition of overt sex discrimination in male and female pay scales. That Act was joined in 1975 by the Sex Discrimination Act, which regulated discrimination against men, women and married persons in employment more generally, then in 1976 by the Race Relations Act which was concerned with discrimination ‘on racial grounds’. 1995 saw the adoption of legislation, long resisted by the then incumbent Conservative government, of the Disability Discrimination Act which was at first very much the ‘poor relation’ of the sex and race legislation, peppered as it was with exceptions and inapplicable to employers of fewer than 20 staff. More recently, the adoption by the EC of Council Directive 2000/78 (the Employment Directive) required the UK to introduce legislation prohibiting discrimination on grounds of sexual orientation and religion or belief, which it did in the form of the Employment Equality (Sexual Orientation) Regulations 2003 (SO Regs) and the Employment Equality (Religion or Belief) Regulations 2003 (the RB Regs).

The same Directive resulted in the introduction of significant amendments to the DDA which have served to bring that Act broadly into line with the other legislation insofar as it deals with employment, and will in 2006 result in the regulation of age discrimination in the employment context. The RRA has been amended to give effect to the Race Directive (Council Directive 2000/43) and in October 2005 the SDA was amended to give effect to the Equal Treatment Amending Directive (Council Directive 2002/73).

Neither the SDA nor the EqPA can be considered in isolation from Council Directive 76/207 (the Equal Treatment Directive, as amended by Council Directive 2002/73), Council Directive 75/117 (the Equal Pay Directive) and Article 141 (ex 119) of the Treaty Establishing the European Community (TEC). Article 141 may be relied upon in the face of inconsistent national provisions in order to claim equal pay, ‘pay’ being very broadly defined. The Equal Treatment Directive may be relied upon directly only vis-à-vis the state (though for the indirect effect of the Directive see Webb v EMO, discussed below). The same is true of Council Directives 2000/43 and 2000/78 (the Racial Equality and Employment Directives), in relation to which the RRA, DDA, SO Regs and RB Regs must be interpreted.

4.1.2 Twenty-first century developmentsUntil 2003 domestic law provided express regulation of discrimination on grounds of sex, race and disability alone. 2003 saw the introduction of the SO Regs and the RB Regs which regulate discrimination on grounds of sexual orientation and religion or belief respectively, as well as significant amendments to existing legislation. Legislation to be introduced in 2006 will extend regulation of employment-related discrimination to the ground of age.

The SDA regulates discrimination on grounds of sex, discrimination against married people and discrimination in connection with gender-reassignment. Arguments that the SDA ought to be interpreted to cover sexual orientation discrimination met with no success (see, in particular, MacDonald), though ‘sex’ does include pregnancy (Webb). The significance of MacDonald is limited as a result of the introduction of the SO Regs.


The RRA prohibits discrimination on ‘racial grounds’. For the scope of this see Mandla v Dowell Lee, Weathersfield v Sargent and the application of Mandla in Dawkins v Department of the Environment. These cases illustrate that the RRA did catch some instances of discrimination related to religion but protection was patchy until the introduction of the RB Regs.

The DDA, by contrast with the SDA and RRA, applies asymmetrically, that is, only to those who qualify as ‘disabled’ under the Act (see Chapter 3 section 3.25 of Collins, Ewing and McColgan and note, by contrast, that men as well as women and majority ethnic as well as minority ethnic groups are protected by the SDA and RRA respectively).

Activities 4.1–4.44.1 Summarise in no more than 50 words the test set out by the House of Lords in

Mandla to determine whether or not the protection of the RRA extends to any particular group of people. Once you have done this, then list:

a. three groups of people likely to be excluded by the test

b. three groups of people likely to be included within the test

c. one reason why the restrictions imposed by Mandla are now of limited significance in the employment context.

4.2 Summarise in no more than 100 words the main difference between the DDA on the one hand and the other discrimination provisions as regards the grounds on which discrimination is regulated, and outline the main features of the Act’s concept of ‘disability’.

4.3 Explain the significance of the difference between the use of the term ‘on the ground of her sex’ in the SDA and the term ‘on racial grounds’ in the RRA? Which approach is most common in the UK’s discrimination legislation?

4.4 Describe the extent to which people are protected by the DDA from discrimination on the grounds:

a. of medical conditions which do not impact on their ability to function

b. of perceived disability.


Self-assessment questions1. What is meant by ‘racial grounds’ for the purposes of the RRA? To what extent

does ‘race’ in this context overlap with ‘religion’.

2. What, in your view, are the main shortcomings of the approach taken to ‘disability’ by the DDA?

Useful further reading ¢ Poulter, S., ‘Muslim headscarves in school: contrasting approaches in England

and France’ Oxford Journal of Legal Studies 17(1) 1997, pp.43–74.


4.2 Forms of discrimination

Essential reading ¢ Collins, Ewing and McColgan, Chapter 3: ‘Equality’, sections 3.2–3.6 and 3.8.

¢ Cases: Allonby v Accrington and Rossendale College [2001] ICR 1189; Abrahamsson and Anderson v Sweden [2000] ECR I-05539; [2000] IRLR 732; Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065; Clark v TDG Ltd (t/a Novacold) [1999] ICR 951; Cross v British Airways plc [2005] IRLR 423; DWP v Thompson [2004] IRLR 248; Hardys & Hansons plc v Lax [2005] IRLR 668; St Helen’s Metropolitan Borough Council v Derbyshire [2005] IRLR 801; James v Eastleigh Borough Council [1990] 2 AC 751; Nagarajan v London Regional Transport [1999] ICR 877; Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937; Perera v Civil Service Commission [1983] ICR 428; Post Office v Jones [2001] ICR 805; R (Elias) v Secretary of State for Defence [2005] IRLR 788; R (European Rome Rights Centre & Ors) v Immigration Officer at Prague Airport & Ors [2005] 2 AC 1; Schmidt v Austicks Bookshops [1978] ICR 85; Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] ICR 1021.

Discrimination is categorised as ‘direct’ or ‘indirect’, or as occurring by way of ‘victimisation’ or ‘harassment’.

‘Direct discrimination’ occurs where ‘but for’ the fact of the claimant’s sex, race, sexual orientation, etc., he or she would have been treated more favourably. For the application of this test see James v Eastleigh and the Roma Rights case. For the application of this test to pregnancy discrimination see Webb v EMO (No 2) and see Pearce for the application of direct discrimination to harassment in connection with the prohibited grounds.

Note now the embrace of an express statutory prohibition on harassment in the wake of the Racial Equality and Employment Directives (see Collins, Ewing and McColgan, section 3.3.1.3).

See Schmidt v Austicks and DWP v Thompson for the application of direct discrimination to clothing and appearance rules (see also critique by Skidmore, below).

‘Victimisation’ occurs where a person is penalised for complaining or taking action in relation to alleged discrimination. For examples of the operation of the law in this context see Nagarajan, Khan and, most recently, the St Helen’s case.

‘Indirect discrimination’ is concerned, essentially, with the application of the same rule to groups who are differently affected by it. Obvious examples would include the application of the same height or strength requirements to men and women, or the application to all prospective employees of a rule concerning residence where the relevant geographical area is racially segregated. The definition of indirect discrimination in the domestic legislation has changed significantly as a result of the implementation of Directives 2000/43, 2000/78 and 2002/73, and it is crucial to grasp this. Much of the case law on indirect discrimination is now obsolete and you should concentrate instead on the cases decided post-amendment of the legislation. The changes in this context are examined in detail in section 3.5 of Collins, Ewing and McColgan and among the few cases decided on the new test at the time of writing are Cross v BA, Elias and Hardys.

The DDA does not utilise the concept of indirect discrimination, but imposes a duty of reasonable adjustment on employers the breach of which is classified as disability discrimination. For the operation of this duty see Archibald v Fife and Chapter 3 of Collins, Ewing and McColgan, section 3.6.2.


Note that neither direct disability discrimination nor a failure to make reasonable adjustment is capable of justification since October 2004. The test for justification of disability-related discrimination (see Clark v TDG) differs significantly from that of indirect discrimination under the other statutory regimes. See, in particular, Post Office v Jones and contrast Allonby v Accrington. Note also, in the context of disability discrimination, the concept of ‘reasonable accommodation’ discussed at Collins, Ewing and McColgan, Chapter 3, section 3.6.2.

Turning to the legality of positive discrimination note the symmetrical approaches of the SDA and RRA (not the DDA) and the very limited exceptions for positive action. In the EU context, see Collins, Ewing and McColgan, Chapter 3, section 3.8 and the decision of the ECJ in Abrahamsson.

Activities 4.5–4.104.5 List the forms of discrimination regulated by the DDA, on the one hand, and the

SDA, RRA, SO Regs and RB Regs, on the other.

4.6 Describe how the new approach to indirect discrimination differs from that originally adopted by the RRA and the SDA.

4.7 List the circumstances under which positive discrimination is permitted by UK law.

4.8 Describe how disability-related discrimination differs from direct discrimination.

4.9 What is meant by ‘harassment’? What is the significance of its express prohibition in discrimination legislation?

4.10 Explain the concept of ‘reasonable adjustment’ under the DDA’s employment provisions.


SummaryThe statutory regulation of discrimination is complex, encompassing as it does concepts of direct discrimination, disability-related discrimination, indirect discrimination (of no fewer than three varieties), victimisation and breach of a duty to make reasonable accommodation. It is essential to grasp these fundamental concepts in order to understand this difficult area.

Self-assessment questions1. What are the most significant differences between the types of discrimination

regulated by the DDA, and the other discrimination legislation?

2. How satisfactory is the current legislative approach to indirect discrimination? What significant changes have been made in this context in recent years?

3. To what extent is ‘positive’ discrimination permitted under (a) UK law, and (b) EC law? How has the implementation of Article 141(4) TEC changed the position with respect to the latter (see Abrahamsson)?

4. To what extent is ‘harassment’ prohibited under the various anti-discrimination Acts? How has this changed in recent years?

5. Under what circumstances may employers adopt sex-specific clothing and appearance rules? Would courts adopt a similar approach to race-specific rules?

Useful further reading ¢ Caruso, D. ‘Limits of the classical method: positive action in the European Union

after the New Equality Directives’ Harvard International Law Journal 44(2) 2003, p.331–386. [See http://www.bu.edu/law/faculty/papers/pdf_files/CarusoD090903.pdf]


4.3 Prohibited discrimination

Essential reading ¢ Collins, Ewing and McColgan, Chapter 3: ‘Equality’, sections 3.7, 3.9.

¢ Cases: De Souza v The Automobile Association [1986] ICR 514; Driskel v Peninsula Business Services Ltd [2000] IRLR 151; Kelly v Northern Ireland Housing Executive [1998] ICR 828; Lambeth London Borough Council v Commission for Racial Equality [1990] ICR 768; Mirror Group Newspapers Ltd v Gunning [1986] ICR 145; R (Amicus – MSF section) v Secretary of State for Trade and Industry [2004] IRLR 430; Tottenham Green Under Fives’ Centre v Marshall (No 2) [1991] ICR 320; Tower Boot Co Ltd v Jones [1997] ICR 254.

With the exception of the DDA, which provides (s.3A(5)) that direct discrimination requires comparison with a person ‘whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person’, all the other discrimination provisions contain specific exceptions permitting direct discrimination where GOQ or GOR (genuine occupational qualification or genuine occupational requirement) defences apply. The RRA contains both GORs and GOQs (see Collins, Ewing and McColgan, section 3.9 for discussion) whereas the SDA contains only GOQs (these have recently been amended to comply with the Equal Treatment Directive in its amended form and the SO Regs and the RB Regs contain only GORs). See Lambeth v CRE and Tottenham Green v Marshall (No 2) for the approach of the courts to the GOQ defence and the Amicus case for an early (unsuccessful) challenge to the scope of the GOR defence in the SO Regs. It is important to consider the way in which Reg 7 of both the SO Regs and the RB Regs provides a (limited) space in which the employer’s religious obligations or beliefs may be balanced against the sexual orientation and the religious beliefs respectively of (prospective) employees. This has proved perhaps the most controversial aspect of the Regulations and it remains to be seen how significant in practice will be the space accorded to (prospective) employers to discriminate in this context.

Turning to the scope of the prohibited employment-related discrimination see s.4 RRA, ss.6 SDA and DDA and Regs 6 SO Regs and RB Regs. For the limits of the protection see Mirror Group Newspapers v Gunning and Kelly v Northern Ireland Housing Executive. See De Souza v Automobile Association for the problems which the requirement for ‘detriment’ can create in the harassment context; Driskel v Peninsula Business for a more recent approach (and note the new statutory definitions of harassment). See Tower Boot v Jones for vicarious liability on the part of employers.

Activity 4.11Describe when employers may be liable for harassment conducted by their staff and/or others.


SummaryDiscrimination will breach the relevant legislation only where it (a) is connected with a regulated ground, (b) takes a regulated form and (c) occurs in a regulated context. Loopholes as regards (c) have been filled in recent years (notably as a result of the extension of the legislation to cover post-employment discrimination such as in the context of references). It is worth noting, however, that employers are able to justify certain acts of direct discrimination and to escape liability for the actions of their workers if they have taken steps to prevent such discrimination.

Self-assessment questionHow satisfactory is the approach of UK law to the regulation of harassment? To what extent has the answer to this question changed in the last five years?



u describe the grounds upon which discrimination is regulated in the context of employment

u explain what is meant, in particular, by ‘racial grounds’, ‘sex’, ‘disability’ and ‘religion or belief’

u list and explain the various different types of ‘discrimination’ regulated in the context of employment

u distinguish with confidence between ‘direct’ and ‘indirect’ discrimination

u describe the main acts of discrimination regulated in the employment context

u outline the operation of vicarious liability in the discrimination context.

4.4 Pay discrimination

Essential reading ¢ Collins, Ewing. and McColgan, Chapter 3: ‘Equality’, section 3.10.

¢ Cases: Allonby v Accrington and Rossendale College [2004] ECR I-09483, [2004] IRLR 224; British Coal Corp v Smith [1996] ICR 515; Glasgow City Council v Marshall [2000] ICR 196, Hayward v Cammell Laird Shipbuilders Ltd [1988] ICR 894; Lawrence v Regent Office Care [2002] ECR I-07325, [2002] IRLR 822; Leverton v Clwyd County Council [1989] ICR 706; Rainey v Greater Glasgow Health Board [1987] 1 AC 224; Ratcliffe v North Yorkshire County Council [1995] ICR 833; Scullard v Knowles & Southern Regional Council for Education & Training [1996] ICR 339; Strathclyde Regional Council v Wallace [1998] ICR 205.

The last substantive area to be considered concerns pay discrimination. Where this concerns sex it is governed by the EqPA rather than the SDA (where it concerns other protected grounds it falls within the relevant discrimination legislation). Note that the EqPA does not solely regulate pay but deals also with discrimination on grounds of sex in other contractual terms.

The first thing that the applicant must do is select a comparator – see Scullard v Knowles for the ability of Article 141 to widen the search beyond the immediate employer (but cf Lawrence v Regent Office Care, Allonby v Accrington). Leverton v Clwyd and British Coal v Smith illustrate the circumstances under which a worker can compare herself to a comparator beyond her workplace. Note also the three types of equal pay claims and the meaning of ‘equal’ (Hayward v Cammell Laird). The employer can defend a disputed pay differential by demonstrating that it is due to a material factor ‘not the difference of sex’ – see Rainey v Greater Glasgow; Ratcliffe v North Yorkshire; Strathclyde v Wallace; Glasgow v Marshall.

Activities 4.12-4.134.12 List the differences in approach in relation to a pay-related claim according to

whether the ground on which discrimination is alleged is sex or race. Which regime is more favourable and why?

4.13 How does the concept of discrimination fit into the EqPA?


Self-assessment questionWhen must an employer objectively justify, under s.1(3) EqPA, a pay difference between comparable workers? What is the justification test?



u explain the operation of the Equal Pay Act 1970

u outline the main loopholes and flaws in the discrimination legislation

u describe the main differences in approach to discrimination between the DDA and the other discrimination legislation.

Sample examination questionsQuestion 1 Farzana, an observant Muslim woman who wears a headscarf, seeks employment at Purple Ltd as a receptionist. She is told by the Managing Director that he would ‘strongly prefer’ to employ someone who did not wear a scarf, but that he would employ Farzana if she was ‘much better’ than any of the other candidates. In the event Sheila, one of the other candidates, is judged to be broadly similar in terms of qualifications, aptitude, etc., and is offered the job.

Advise Farzana as to any remedy she might have. How would your answer differ, if at all, if the events had taken place prior to the implementation of the Employment Equality (Religion and Belief) Regulations 2003?

Question 2 Advise the following workers of any legal remedies available to them, drawing attention where relevant to any further information you might need in order to advise them properly:†

a. Sally, a secretary employed by Busted plc, who wishes to challenge the fact that she is paid less than Doug, a male secretary who is also employed by Busted

b. Petunia, a female personal assistant employed by Chuckle Ltd, who wishes to challenge the fact that she is paid less than Maria, also a female personal assistant employed by Chuckle

c. Rita, an executive director of the Royal Ballet Company, who wishes to challenge the fact that she is paid less than Mark, an executive director of the Royal Opera House. The two organisations are separate but are both funded by the Department for Culture and the Arts, which regulates staff salaries.

Question 3 Suliman, a Muslim of Pakistani origin, works at Robust Exteriors Ltd which manufactures garden furniture. He is concerned about the way he is treated by some of his fellow workers who have taken to making comments about Islamic terrorists in his presence. He speaks to a manager about the matter but is told he is being ‘over-sensitive’.

Advise Suliman as to his possible courses of action. How, if at all, would your answer differ if the events had taken place before the implementation of the Employment Equality (Religion and Belief) Regulations 2003?

Question 4 In the legal control of discrimination (sex, race and disability) in employment, is the more significant role played by the prohibition of direct discrimination or of indirect discrimination? Discuss, with reference both to legislative measures and to case-law.

Question 5 Harry, Ingrid and James are all employed as teachers at Nickleby Academy, a secondary school with a strong Christian ethos.

Harry is gay, but neither the head teacher, Keith, nor the school governors of Nickleby Academy are aware of Harry’s sexual orientation until a photograph of him leaving a well-known gay pub is published in the local newspaper. Harry is informed by Keith that his continued employment at the school will not be tolerated, as this would undermine the Christian values which the school was founded to promote. Harry is dismissed with notice.

† Note that Sally, Petunia, Maria and Rita are women; Doug and Mark are men.


Ingrid, who has recently married, requests leave to celebrate the Muslim festival of Eid. She is not Muslim herself, but her husband is, and she wishes to mark Eid with him. Her request for leave is denied.

James has recently converted to Hinduism and is growing his hair long so that he can wear a Shika (small knotted tuft of hair worn at the back of the head). Keith, however, requests James to cut his hair, in order to comply with the teachers’ dress code banning ponytails on men.

Advise Harry, Ingrid and James as to their rights, if any.

Question 6 ‘The Disability Discrimination Act 1995 offers a model of anti-discrimination law, based as it is on the duty on employers to make reasonable adjustments, which other anti-discrimination laws could usefully adopt.’

Discuss.

Advice on answering the questionsQuestion 1 This question raises the issue of discrimination on grounds of religion or belief as dealt with by the Employment Equality (Religion or Belief) Regulations 2003. In essence, a good answer would be expected to spot that the treatment to which Farzana has been subjected might amount to indirect discrimination on grounds of religion or belief within the definition adopted by the Regulations, and to explain this by reference to the Regulations. This aspect of the question is fairly straightforward. The more difficult part of the question is the second part: how would the answer differ if the issue had arisen prior to the implementation of the Regulations. Here two questions arise:

1. are Muslims protected as a racial group for the purposes of the Race Relations Act 1976? The answer to this requires the application of the House of Lords decision in Mandla v Dowell Lee and an explanation as to why Muslims do not count as a protected group under this test. A good answer might, however, note that she could be protected as a Muslim from indirect race discrimination on another ground – if, for example, she belonged to a racial group which was predominantly Muslim.

2. A good answer ought to deal with the fact that the ‘no scarf’ is a preference rather than an absolute requirement or condition – this would have caused problems under the RRA’s original definition of indirect discrimination but not under the new definition which took effect in July 2003, in so far as the discrimination alleged is on grounds of ‘race or ethnic or national origin’ as would probably here be the case.

Question 2 This question requires consideration primarily of the EqPA which regulates pay discrimination between men and women. Other legislation ought also to be referred to in connection with the pay difference between the women Petunia and Maria, since the EqPA requires a comparison with a person of the opposite sex.

Taking first Sally and Doug, you are told that both are secretaries and both employed by Busted plc. On the face of it looks as if a like work claim might be appropriate. Among the information which will be required is whether the jobs are broadly similar or only share a job title and, if there are significant differences between them, whether they have been rated as equivalent for the purposes of a s.1(2)(b) EqPA claim. The employer’s GMF defence ought to be mentioned but there is no information as to what it might be based on.

Taking next Petunia and Maria: they appear to be engaged in similar work for the same company. No claim is available under the EqPA so it would be necessary to find out whether there is any difference between them which might suggest an alternative claim (i.e. race, sexual orientation, religion or belief). A good answer would state that pay discrimination is challengeable under the discrimination legislation other than the SDA (sex-related claims falling within the EqPA) and would point out that the difference would only breach the law if it was by reason of any relevant difference, rather than merely coincidental with it.


Rita’s claim under the EqPA is likely to be for work of equal value if anything, since it is unlikely that she would be doing a very similar job to someone employed by a different employer. Her problem is that the EqPA only allows comparisons with workers employed (s.1(6)) by the same or an associated employer, the latter being limited to connected companies. The heart of this question is a discussion of the decisions in Scullard and, more recently, Lawrence and/or Allonby (in the ECJ) in order to ascertain the position under Article 141. The conclusion ought to be that she is likely to succeed in an Article 141 claim assuming the jobs are sufficiently similar in value.

Question 3 This question raises the issue of harassment on grounds of religion or belief as dealt with by the Employment Equality (Religion or Belief) Regulations 2003. In essence, a good answer would be expected to spot that the treatment to which Suliman has been subjected might amount to ‘harassment’ on grounds of religion or belief within the definition adopted by the Regulations, and to explain this by reference to the Regulations. It would also be expected to touch on the question of employer liability. This aspect of the question is fairly straightforward. The more difficult part of the question is the second part: how would the answer differ if the issue had arisen prior to the implementation of the Regulations. Here two questions arise, as in question 1:

1. are Muslims protected as a racial group for the purposes of the Race Relations Act 1976? The answer to this requires the application of the House of Lords decision in Mandla v Dowell Lee and an explanation as to why Muslims do not count as a protected group under this test. A good answer might, however, note that he could be protected as a Muslim from indirect race discrimination on another ground – if, for example, he belonged to a racial group which was predominantly Muslim.

2. The question would be whether he has suffered a ‘detriment’ within s.4(2)(c) of the Race Relations Act. Here some discussion of the decision in de Souza v AA would be of assistance.

Question 4 This question requires, by way of introduction, an outline of the scheme adopted by the Race Relations Act, the Sex Discrimination Act and the Disability Discrimination Act. The main point to be raised at this stage is that, whereas the sex and race legislation utilise the concepts of direct and indirect discrimination, the disability legislation does not, dealing instead with ‘discrimination’ which is defined as a hybrid of direct and indirect discrimination (Clark v TDG) and a duty of reasonable adjustment. Secondly, direct and indirect discrimination should be outlined with note taken of the recent changes implemented in relation to the definition of indirect discrimination by (in the context of sex) the Burden of Proof Regulations and (for race) the Race Regulations (2003). Thirdly (and this is the bulk of the answer), consideration needs to be given to the impact of the prohibition on direct and indirect discrimination. What does it mean to be prohibited from discriminating directly on grounds of race or sex? How common might such discrimination be in employment? How satisfactory are the enforcement mechanisms? As for indirect discrimination, a good answer would note the potential of this prohibition to make a real difference by tackling (for example) the impact on employment of women’s unequal burden of childcare responsibilities. Here some discussion is necessary of the shortcomings of the definition pre-amendment (Perera is an obvious example). Finally, a very good answer might note the relationship between ‘direct’ and ‘indirect’ discrimination and the definitions of discrimination employed by the Disability Discrimination Act and comment, perhaps, on the relative merit of these and the definitions to be found in the sex and race legislation.

Question 5 This question requires discussion of the Employment Equality (Religion or Belief) Regulations and the Employment Equality (Sexual Orientation) Regulations in the context of the particular questions raised.


Taking Harry first, the primary question is whether the SO Regs protect him from dismissal in these circumstances. The relevant provision is Reg 7 which permits discrimination where sexual orientation is a GOR. The question here is whether 7(2) or 7(3) applies, which in turn requires consideration of whether Harry is employed ‘for the purposes of’ an organised religion. Depending on the answer to this, is being of a particular sexual orientation a genuine and determining requirement for the job? Or (if Reg 7(3) applies) has the employer applied ‘a requirement related to sexual orientation… so as to comply with the doctrines of the religion, or because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers’. Some mention might also be made of the unfair dismissal provisions, though the width of the ‘range of reasonable responses’ test is such that a challenge under the ERA is unlikely to succeed.

Turning to Ingrid, the question here is whether the RB Regulations provide her with a right to time off. A refusal to grant such time off is challengeable only as indirect discrimination and the problem for Ingrid is that she is not less able, by reason of her religion/belief, to comply with the requirement to work Eid than are persons of other religious faiths.

As far as James is concerned, the question is whether imposing a dress code on him breaches the RB Regs. Assuming there is no direct discrimination, the question is whether the ‘no ponytail’ rule is one:

‘(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim’.

Question 6 This question requires a specific discussion of the DDA rather than ‘all I know about disability discrimination’ (a common answer). Answers should focus on the duty of reasonable adjustment and compare it with the approach taken by other discrimination legislation, in which the equivalent concept is that of indirect discrimination. A good answer would detail the shortcomings of the indirect discrimination concept – in particular, the technical rigidities which have plagued it over the years, and consider whether the approach set out in the DDA is better, or whether recent amendments to the definition of indirect discrimination are as good as (or better) in relation to other protected grounds. Some mention should be made of the fact that a failure to make a reasonable adjustment cannot be justified, whereas indirectly discriminatory measures can be. Having said this, the question what is ‘reasonable’ will perform much the same function as the notion of justifiability.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

5.1 Dismissal: the basic principles . . . . . . . . . . . . . . . . . . . . . . .43

5.2 Wrongful dismissal. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

5.3 Remedies for wrongful dismissal . . . . . . . . . . . . . . . . . . . . .44

5 Dismissal and the common law


Introduction

It is absolutely vital that you grasp the distinction between wrongful and unfair dismissal. Wrongful dismissal is dismissal which takes place in breach of the terms of the contract itself. Most commonly, the only contractual restraint upon dismissal consists of a notice period (sometimes even this permits a payment in lieu thereof) and so a dismissal from such a contract can only be wrongful if the employer gives less notice than is required by the contract. Even this may not amount to a wrongful dismissal if the employee has committed such a fundamental breach of contract as to entitle the employer to terminate without notice. Less commonly, contracts may give some extra protection from dismissal in the form of a disciplinary procedure which must be complied with before the employee can be dismissed for a disciplinary reason or a redundancy procedure which must be used to select employees for redundancy.

In this chapter we consider wrongful dismissal, while in Chapter 6 we consider unfair dismissal, which is a creation of statute. An unfair dismissal may or may not also qualify as a wrongful dismissal: different tests apply and the tests must be applied separately in order to avoid confusion.

Learning outcomesBy the end of this chapter and the relevant reading you should be able to:

u explain the meaning and significance of ‘constructive’ dismissal

u explain the difference between a wrongful and an unfair dismissal

u discuss the remedies available to employees who have been dismissed in breach of contract: in particular, the availability of injunctions

u explain the significance of the automatic and elective theories of breach in the context of the employment contract

u outline when an injunction will be available to a worker dismissed in breach of contract.

Labour law 5 Dismissal and the common law page 43

5.1 Dismissal: the basic principles

Essential reading ¢ Collins, Ewing and McColgan, Chapter 5: ‘Dismissal’, sections 5.2.2 and 5.2.3.

¢ Cases: Marshall v Harland & Wolff [1972] 2 All ER 715; Shepherd v Jerrom [1986] IRLR 358; Villella v MFI Furniture Centres Ltd [1999] IRLR 468; Western Excavating (ECC) Ltd v Sharp [1978] QB 761.

The legal options open to a dismissed employee are dealt with in the following sections of this chapter and in the next. But here we need to deal with the question which sometimes arises: has this employee actually been dismissed? In order to sue either for unfair or for wrongful dismissal, the employee has to show that he or she was actually dismissed. In some cases, as where the employer has expressly sacked the employee, this is easy. But what of the case:

u where the employee seeks to return to work after a year’s sickness or imprisonment

u where the employer has treated the employee so badly that he or she no longer feels able to continue working. Is that employee entitled to consider him or herself dismissed?

The answer to both of these questions lies in the contract of employment. The legal issue raised by the first question is that of frustration and by the second that of constructive dismissal. You will have come across the subject of frustration already in your Contract course: a contract is frustrated (that is, it comes to an end without termination by either party and without having been fulfilled) if an event occurs without the fault of either party which is such as to make the continued performance of the contract either impossible or so radically different from that which had been envisaged by the parties at the outset as to be an entirely different type of contract. The cases dealing with frustration of the contract of employment are Marshall v Harland & Woolf and Shepherd v Jerrom. For the limitations of the doctrine see Villella v MFI Furniture.

As for constructive dismissal, employees who leave work because their employers have made it impossible for them to continue to work may claim that they have been constructively dismissed. However, constructive dismissal requires that the employer has actually committed a serious breach of the contract of employment: whether or not a particular employee has been constructively dismissed depends upon the terms of his or her contract with the employer. This test applies to statutory unfair dismissal protection as well as to the common law concept of wrongful dismissal (see Western Excavating v Sharp), although the breach which founds a constructive dismissal may be of an implied term (see Chapter 2). The term relating to mutual trust and confidence is particularly important in this context.

Activity 5.1a. Explain the common law concept of frustration and its operation in the

employment context.

b. Prepare a short verbal presentation on the concept of constructive dismissal.


Self-assessment questions1. To what extent is the concept of frustration defensible in principle in its

operation in the employment context?

2. How does the concept of constructive dismissal find its way into statutory protection from dismissal? Is the law satisfactory?


u explain the meaning and significance of ‘constructive’ dismissal.


5.2 Wrongful dismissal

Essential reading ¢ Collins, Ewing and McColgan, Chapter 2: ‘The employment relation’, section 2.4.3.

¢ Cases: Anderson v Pringle [1998] IRLR 64; Alexander v Standard Telephones (No. 2) [1991] IRLR 286; Gunton v Richmond-upon-Thames [1980] ICR 755; Robb v Hammersmith [1991] IRLR 72.

A wrongful dismissal is, as was explained in the introduction to this chapter, simply a dismissal in breach of contract. Most commonly the contractual provision at issue will govern notice, this being the only restriction upon dismissal in many employment contracts. Less commonly, contracts may give some extra protection from dismissal:

u in the form of a disciplinary procedure which must be complied with before the employee can be dismissed for a disciplinary reason (Gunton v Richmond-upon-Thames, Robb v Hammersmith), or

u via a redundancy procedure which must be used to select employees for redundancy (Anderson v Pringle, though see Alexander v Standard Telephones (No. 2), in which the court refused to accept that the redundancy selection procedure had been incorporated into the employees’ contracts of employment).

Where such a procedure is incorporated, dismissal by the employer who has failed to go through the appropriate procedure will amount to a breach of contract and, therefore, to a wrongful dismissal. Remedies for wrongful dismissal are considered below (5.3). But you should remember that ‘wrongful’ does not mean ‘unjust’, ‘unmeritorious’ or ‘unfair’. A dismissal may be all of these things and yet be perfectly consistent with the contract of employment, in which case the employee will have no contractual claim. Equally, a dismissal may be richly deserved, fair and just but nevertheless wrongful because the employer has failed to give due notice or to follow the appropriate procedure.

Activity 5.2a. List some of the contractual terms which might be breached by a dismissal.

b. Write a brief summary of section 5.2 (no more than 50 words).



u explain the difference between a wrongful and an unfair dismissal.

5.3 Remedies for wrongful dismissal

Essential reading ¢ Collins, Ewing and McColgan, Chapter 5: ‘Dismissal’, sections 5.1.1, 5.1.2 and 5.1.3.

¢ Cases: Alexander v Standard Telephones & Cables Ltd [1990] IRLR 55; Alexander v Standard Telephones & Cables Ltd (No. 2) [1991] IRLR 286; Dietman v Brent London Borough Council [1987] IRLR 259; Gunton v London Borough of Richmond-upon-Thames [1980] ICR 755; Hill v Parsons [1972] Ch 305; Irani v Southampton & SW Hampshire Area Health Authority [1985] ICR 590; Jones v Gwent County Council [1992] IRLR 521; Marsh v National Autistic Society [1993] ICR 453; Powell v London Borough of Brent [1987] ICR 176; Rigby v Ferrodo [1988] ICR 29; Robb v Hammersmith & Fulham London Borough Council [1991] IRLR 72.


Having established that a wrongful dismissal has taken place the next issue is to decide what remedies are available to the dismissed employee. This is an area in which a great deal of activity is currently taking place. The traditional view was that a worker dismissed in breach of contract (generally by being given an inadequate period of notice) was entitled, as a matter of contract only to damages representing the wages he or she would have earned during the contractual notice period.†

Injunctions were not seen to be available because of the rule against specific performance of contracts of personal service. Furthermore, the automatic termination theory held sway until recently with the effect that a purported dismissal by an employer in breach of the terms of the contract (i.e. with inadequate notice or in breach of a contractual disciplinary procedure or other term restricting dismissal), was seen to be valid to terminate the contract of employment even in the absence of an acceptance by the worker. This had implications in terms of the availability of injunctions.

More recently, however, the contract of employment is being increasingly litigated by workers whose statutory rights have been reduced. The Collins, Ewing and McColgan chapter details the increasing value of contractual remedies to employees, which in turn have depended upon the resurgence of the classical contractual view that an unrepudiated breach is ‘a thing writ in water’. This has had an impact not only upon the availability of injunctions to prevent the employer from ending an employment contract which he or she has already purported to terminate in breach of its terms (Hill v Parsons, Irani v Southampton, Powell v Brent, Robb v Hammersmith, Jones v Gwent) but also, albeit to a more limited extent, upon the measure of damages available to the employee (Rigby v Ferrodo, Dietman v Brent, Gunton v Richmond-upon-Thames, Marsh v National Autistic Society). Despite these movements, however, you should be aware of the difficulties associated with seeking injunctions to prevent wrongful dismissal (Dietman v Brent, Alexander v Standard Telephones) and the limitations on the damages available to employees who have been wrongfully dismissed (Gunton v Richmond-upon-Thames, Alexander v Standard Telephones (No. 2), Marsh v National Autistic Society). In practice it remains the case that, for the majority of employees, the only remedy available for wrongful dismissal consists of a sum in respect of the notice period to which they were entitled.

Activity 5.3a. Describe the circumstances in which the courts will be prepared to award an

injunction to prevent an employer from dismissing an employee.

b. Describe in which court(s) an employee may sue for damages in respect of a wrongful dismissal, and which courts may grant injunctions.


Self-assessment questions1. How may an employer breach a contract of employment?

2. Is a breach of contract by the employer sufficient to terminate the contract, or can the employee prevent it from so doing?

3. What is the importance of the answer to question 2 in relation to:

a. the damages available to the employee?

b. the availability of an injunction?

4. Explain the distinction between an ‘unfair’ dismissal and a ‘wrongful’ dismissal.

† Note that unfair dismissal legislation is not under discussion here.



u discuss the remedies available to employees who have been dismissed in breach of contract: in particular, the availability of injunctions

u explain the significance of the automatic and elective theories of breach in the context of the employment contract

u outline when an injunction will be available to a worker dismissed in breach of contract.

Sample examination questionsQuestion 1 Mary, who works for Cheeky Chappy Builders plc, informs her employers that she is pregnant. She is the only woman in the workforce in which there are over 50 staff, and her contract of employment says nothing about maternity leave or pay. Some days after telling her employers about her pregnancy, Mary is sacked for ‘gross misconduct‘ in connection with an incident with which she denies any involvement.

Advise Mary as to any contractual remedies she might have against Cheeky Chappy Builders plc, on the basis that her contract contains a disciplinary procedure which the employers have failed to follow.

Question 2 Purple Ltd, a manufacturer of telephones, announces that the popularity of mobile telephones has led to a fall in demand for its fixed-line telephones, with the result that it needs to reduce staffing costs. Rob and Tina are employees of Purple Ltd and are also members of the Telecommunication Workers Union (TWU), with which Purple reached a ‘Job Security Agreement’ in 2002.

a. Advise Rob who is selected for redundancy in breach of the last-in-first-out (LIFO)† procedure in the Job Security Agreement, as to any contractual remedy he might have. Would your advice to Rob be different if he were not a member of the union?

b. Advise Tina who is told that, in order to avoid dismissal, she will have to accept reduced hours of work, and the loss of her annual Christmas bonus, as to any contractual remedy she might have.

Question 3 To what extent does the contract of employment regulate employers’ powers to dismiss?

Advice on answering the questionsQuestion 1 This question is about wrongful dismissal (i.e. dismissal in breach of a contractual disciplinary procedure). Mary has been sacked in breach of her contractual disciplinary procedure and will be entitled to damages in respect of any contractual notice period plus (Gunton v London Borough of Richmond upon Thames) the period which the disciplinary procedure would have taken to carry out. Contracts, however, rarely contain any substantive restrictions on dismissal and so are inadequate by way of protection. I will note here that Mary probably has a claim for sex discrimination and for automatically unfair pregnancy discrimination but you have been asked to advise on contractual remedies only and so should mention these only in passing if at all.

Question 2 The issue raised in relation to Rob concerns his selection for redundancy in breach of an agreed LIFO procedure. The question is whether the agreed procedure formed part of his contract of employment (Marley v Forward Trust, Alexander v Standard Telephones, Anderson v Pringle). If it did – what is the remedy? It would not make any difference whether Rob was a member of the union as the question whether the agreed procedure forms part of his contract turns on whether it has been incorporated, not on the union having acted as agent for its members.

† LIFO is a principle commonly favoured by trade unions for deciding who should be made redundant.


The questions raised in relation to Tina are (a) whether she can stop the changes, and (b) if she cannot, whether she can seek compensation in connection with them. The primary point is that changes cannot be unilaterally imposed if they relate to contractual terms as these (hours and bonus) would appear to do. A good answer would briefly address the sources of the hours and bonus and make the point about unilateral change. Injunctive relief is possible but unlikely given that it will only be provided if damages would not suffice. Tina is then left to claim relief in damages (Rigby v Ferrodo) – she could do this both in relation to the wages she has been prevented from earning by the reduction in hours and to the Christmas bonus. She could also – if she wanted to leave – found a constructive dismissal on the contractual breach and claim wrongful dismissal, though this will probably result only in the award of damages to cover wages during the notice period.

Question 3 This question is designed to encourage a discussion of express and implied contractual restrictions on dismissal. As to the former, these include:

u (typically) a notice period, as statute implies minimum notice periods into the contract of employment

u (less commonly) contractual disciplinary procedures

u (occasionally) contractual redundancy procedures.

Mention might be made of the fact that disciplinary and redundancy procedures, if they are found in the contract, are typically incorporated there from collective agreements, and reference made to Alexander v Standard Telephone Cables as evidence that the courts are not always prepared to incorporate redundancy provisions, particularly in the absence of express terms in the contract of employment so doing.

Express terms are not, however, the only type of contractual term. Implied terms regulate the employer’s (and the employee’s) rights and obligations under the contract. Most significant here is the implied term relating to mutual trust and confidence which could regulate the employer’s power to dismiss. In Johnson v UNISYS, however, the House of Lords refused to accept that this implied term could be breached by the nature of a dismissal, taking the view that to permit this would effectively read a right not to be unfairly dismissed into the contract, which would allow employees to rely on this in order to subvert the statutory restrictions on remedies for unlawful dismissal. So implied terms have only limited impact on powers to dismiss. It is clear from Johnson that the courts will not read the new statutory disciplinary procedure into the contract of employment, for reasons analogous to those relied upon by their Lordships in that case.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50

6.1 The basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51

6.2 Fairness of dismissals: ‘disciplinary’ dismissals . . . . . . . . . . . . . . .53

6.3 Redundancy and other economic dismissals . . . . . . . . . . . . . . . .54

6.4 Transfers of undertakings . . . . . . . . . . . . . . . . . . . . . . . . .56

6 Statutory protection from dismissal


Introduction

Unfair dismissal is governed largely by the Employment Rights Act 1996 (ERA). The Act provides valuable protection for employees, generally on completion of a year’s qualifying service but in the event of an automatically unfair dismissal (see further below) from the start of employment. It does not, however, protect non-employees. In this chapter we explore the basics of unfair dismissal (including the question what is a dismissal for the purposes of the ERA), the categories of automatically unfair dismissal and potentially fair dismissals, and the approach taken by tribunals to the very important question of reasonableness under the Act.


u describe the circumstances in which a worker can claim unfair dismissal – in particular, the concept of constructive dismissal in this context

u explain what is meant by the effective date of termination and why it is important

u explain the difference between an automatically unfair dismissal and other unfair dismissals

u explain the concept of continuity of employment and why it is important

u explain the relevance of procedure to unfair dismissal

u explain the ‘range of reasonable responses’ test

u explain the rule in Polkey and its statutory displacement

u outline the statutory disciplinary procedure and its relevance to unfair dismissal law

u explain the relevance of ‘managerial prerogative’ and flexibility clauses to the question whether someone is legally regarded as redundant

u explain the relationship between ‘reorganisation’ and ‘redundancy’

u describe the steps an employer should take to ensure that redundancy dismissals are regarded as fair

u explain when the TUPE Regulations apply and describe their effect on the contracts of employees involved in relevant transfers

u explain the relevance of the Regulations to unfair dismissal cases

u describe when employees may refuse to transfer under the Regulations without losing the right to challenge their resulting dismissals.

Labour law 6 Statutory protection from dismissal page 51

6.1 The basics

Essential reading ¢ Collins, Ewing and McColgan, Chapter 5: ‘Dismissal’, pp.433–435 and sections 5.2,

5.3, 5.4-5.4.1.

¢ Cases: Polkey v Edmund Walker (Holdings) Ltd [1988] ICR 142; [1987] IRLR 503; Smith v Glasgow DC [1985] IRLR 79; Western Excavating v Sharp [1978] ICR 221.

Unfair dismissal is governed largely by the Employment Rights Act 1996. In determining whether an employee can claim unfair dismissal, the first steps are to consider whether the worker is an employee (see Chapter 2) and whether a dismissal has taken place for the purposes of the ERA. Three general types of dismissal are recognised by s.95(2) of the Act. See Alcan Extrusions for situations where an employee can claim constructive and unfair dismissal even though still employed by the employer.

The legal options open to a dismissed employee are dealt with in the following sections of this chapter and in Chapter 7. But here we need to deal with the question which sometimes arises: ‘has this employee actually been dismissed?’ In order to sue either for unfair or for wrongful dismissal, the employee has to show that he or she was actually dismissed. In some cases, as where the employer has expressly dismissed the employee, this is easy. But what of the case where the employee seeks to return to work after a year’s sickness or imprisonment? What of the case where the employer has treated the employee so badly that he or she no longer feels able to continue working? Is that employee entitled to consider him or herself dismissed?

The answer to both of these questions lies in the contract of employment. The legal issue raised by the first question is that of frustration (for which see Chapter 5 – the same rules apply in the statutory context) and by the second that of constructive dismissal. As for constructive dismissal, employees who leave work because their employers have made it impossible for them to continue to work may claim that they have been constructively dismissed. However, constructive dismissal requires that the employer has actually committed a serious breach of the contract of employment: whether or not a particular employee has been constructively dismissed depends upon the terms of his or her contract with the employer. This test applies to statutory unfair dismissal protection as well as to the common law concept of wrongful dismissal – Western Excavating v Sharp.

Once it has been established that an employee is entitled to protection from unfair dismissal and that he or she has, in fact, been dismissed, the next issue to consider is whether that dismissal was unfair. For this purpose it is useful to distinguish between automatically unfair and potentially fair dismissals (the latter account for the vast majority of dismissals). Automatically unfair dismissals include those in which the employee is dismissed or selected for redundancy on grounds such as:

u trade union membership or non-membership (TULRCA ss.152 and 153)

u assertion of a statutory right (ERA s.104, 104A and 104B)

u pregnancy (ERA ss.99 and 105(2))

u taking advantage of maternity or parental leave (ERA ss.74(3) and 78(2))

u or in connection with being a worker representative (ERA ss.103).

In these cases (and see also ERA ss.100 and 105(3); 101, 102, TUPE Reg 8) the burden is on the employee to show the reason for the dismissal though, as in the case of discrimination claims, inferences may be drawn from the primary facts.

Note that new s.98A provides that dismissals in breach of prescribed statutory disciplinary procedures will be automatically unfair. This is discussed in the following section.


Section 98 ERA permits dismissals, subject to the question of reasonableness, for reasons of conduct, capability, redundancy, illegality and ‘some other substantial reason’ (SOSR). Employees are only protected in respect of such dismissals if they have been continuously employed for at least one year (see Collins, Ewing and McColgan, section 5.3 for the difficulties associated with establishing ‘employment’ and continuity).

S.98(4) provides that, where the employer has established that the reason for the dismissal is one of those permitted:

‘the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case’.

Of huge importance here is the ‘range of reasonable responses’ test and the rule in Polkey and, more precisely, the abolition of the Polkey rule by new s.98A ERA (both further discussed in the following section). Here it is sufficient to stress that the employer has to put forward the main reason for dismissal (Smith v Glasgow).

Activities 6.1–6.46.1 Explain what types of termination of contract amount to a dismissal for the

purposes of the ERA, and how this differs from the position at common law.

6.2 Detail the approach taken by the courts to the concept of constructive dismissal in the context of unfair dismissal. Is this approach required by s.95(1)(c) of the ERA?

6.3 Explain when a constructive dismissal occurs without breach of an express contractual term.

6.4 Explain what is meant by the effective date of termination and why it may be important to know what this date is.

Feedback: see end of guide

SummaryThe first question to ask in relation to unfair dismissal is whether an ‘employee’ has been dismissed in the sense set out by the ERA 1996. Then, unless the dismissal is alleged to be for an automatically unfair reason, the next question is whether the employee has sufficient qualifying service to make a claim. Assuming this is the case it is the task of the employer to assert the reason for the dismissal and, assuming this falls within one of the potentially fair reasons set out in the ERA, it is for the tribunal to determine whether the dismissal was within the ‘range of reasonable responses’ open to the employer. In determining this question significance will be attached to the question of procedural fairness, and failure to follow the (minimal) statutory disciplinary procedure will render the dismissal automatically unfair.

Self-assessment questions1. When will a dismissal be automatically unfair?

2. When will an employer be able to defend a dismissal in breach of its own disciplinary procedures?


u describe the circumstances in which a worker can claim unfair dismissal – in particular, the concept of constructive dismissal in this context

u explain what is meant by the effective date of termination and why it is important

u explain the difference between an automatically unfair dismissal and other unfair dismissals

u explain the concept of continuity of employment and why it is important.


6.2 Fairness of dismissals: ‘disciplinary’ dismissals

Essential reading ¢ Collins, Ewing and McColgan, Chapter 5: ‘Dismissal’, sections 5.4.2, 5.4.3, 5.4.4, 5.5

and 5.6.

¢ Cases: British Leyland v Swift [1981] IRLR 91; Dunnachie v Kingston-upon-Hull CC [2004] ICR 1052; Ladbroke Racing Ltd v Arnott [1983] IRLR 1; Iceland Frozen Foods v Jones [1983] ICR 17; Post Office v Foley [2000] ICR 1283; British Leyland v Swift [1981] IRLR 91; Devis v Atkins [1977] ICR 662; Polkey v Dayton [1988] ICR 142; Saunders v Scottish National Camps [1981] IRLR 277; X v Y [2004] ICR 1634.

The ‘potentially fair’ dismissals, which form the largest category of dismissals, may be usefully categorised as either ‘disciplinary’ or ‘economic’. The ‘economic’ dismissals will be considered in the following section, disciplinary dismissals here. Tribunals have traditionally permitted a wide degree of management prerogative in the area of disciplinary dismissals – see Iceland Frozen Foods for the ‘range of reasonable responses’ test and the recent restatement of this test by the Court of Appeal in Post Office v Foley. British Leyland v Swift is illustrative of the degree of deference on the part of tribunals to managerial prerogative and Saunders v Scottish National Camps illustrates very well the shortcomings of the ‘range of reasonable responses’ test.†

The one area in which the courts have exercised a close degree of supervision of dismissals has been in the matter of procedural fairness. The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out detailed standards in this respect and the House of Lords, in Devis v Atkins, has made it clear that tribunals are expected to take these into account when determining the fairness of dismissals. For many years Polkey v Dayton was the leading case in this area (British Home Stores v Burchell is the leading case on the investigative obligations of employers who suspect misconduct). The recently inserted s.98A ERA, however, provides that an employer will be able to resist an unfair dismissal claim based on procedural unfairness if it can establish that the outcome would have been the same even if the procedure had been followed. The partial recompense for this reduction in procedural protection has been the implementation of a (very minimal) statutory disciplinary procedure (which falls far short of the ACAS guidance) and the breach of which renders the dismissal automatically unfair.

In X v Y the Court of Appeal accepted that a dismissal in breach of one or more Articles of the European Convention on Human Rights would generally amount to an unfair dismissal even if the employer was not a public authority.

Turning to the question of remedies, ERA ss.112 and 113 establish reinstatement and re-engagement as the primary remedies. But in almost all cases (in all but around one per cent of cases proceeding to full hearing, and five per cent of successful claims) the remedy, if any, consists of compensation. Basic compensation is provided for in ERA, s.119; compensatory awards by s.123. A major limitation is imposed by the rule, reaffirmed by the House of Lords in Dunnachie, that compensation is not available in respect of injury to feelings caused by the dismissal.

Activities 6.5–6.76.5 Explain why the ‘range of reasonable responses’ test is often criticised.

6.6 Explain the current status of the Polkey decision.

6.7 Describe the steps an employer should take in order to avoid a finding of unfair dismissal in connection with a disciplinary dismissal.


† Make sure you have read Saunders v Scottish National Camps.


Self-assessment questions1. What steps should an employer take before dismissing someone on the basis of

ill-health?

2. What are the main remedies in cases of unfair dismissal?

3. To what issues may the tribunal have regard in determining the reasonableness of a dismissal? In particular, how important is the issue of procedural fairness?

4. To what extent may events after the termination of employment be relevant to the issue of fairness?

Activity 6.8How satisfactory is the current position regarding remedies in cases on unfair dismissal?

Prepare a short spoken statement giving your views on the subject.

No feedback provided.


u explain the relevance of procedure to unfair dismissal

u explain the ‘range of reasonable responses’ test

u explain the rule in Polkey and its statutory displacement

u outline the statutory disciplinary procedure and its relevance to unfair dismissal law.

6.3 Redundancy and other economic dismissals

Essential reading ¢ Collins, Ewing and McColgan, Chapter 10: ‘Restructuring the Business’, sections

10.2 and 10.3.

¢ Cases: British Aerospace v Green [1995] ICR 1006; Catamaran Cruisers Ltd v Williams [1994] IRLR 384; Hollister v National Farmers Union [1979] IRLR 238; High Table Ltd v Horst [1997] IRLR 513; John Brown Engineering v Brown [1997] IRLR 90; Lesney Products v Nolan [1977] ICR 235; Moon v Homeworthy Furniture Ltd [1977] ICR 117; Murray v Foyle Meats [1999] ICR 827; Murphy v Epsom College [1984] IRLR 271; Safeway Stores Plc v Burrell [1997] ICR 523; Thomas & Betts v Harding [1980] IRLR 255; Thomas Wragge v Wood [1976] ICR 313; Williams v Compair Maxam Ltd [1982] ICR 156.

The question whether or not someone is redundant arises in three separate situations:

i. where an employee claims unfair dismissal and the employer seeks to rely upon redundancy as a potentially fair reason for dismissal

ii. where an employee wishes to claim a redundancy payment

iii. where employees or a trade union representing them claim(s) that the employer is required to inform and consult over mass redundancies.

The definition of ‘redundant’ is the same in the first two of these situations but, importantly, differs for the purposes of (iii). The first two situations will be considered briefly here, the third is considered in Chapter 7.

Where an employer wishes to rely upon redundancy as a potentially fair reason for dismissal the burden lies upon him or her to establish that the employee was redundant. The definition of redundancy that applies here and in relation to the right to redundancy payment is set down in s.139 ERA.† It is important that you are familiar with it. The courts will not, in general, inquire into what is perceived as ‘managerial prerogative’ (for example, the decision to shut down a factory – Moon v Homeworthy).

† You should look up this definition and record it in your notes.


‘Work of a particular kind’

One problem which frequently arose in determining whether or not an employee was properly classified as ‘redundant’ concerned the ‘work of a particular kind’ for which the employer’s needs had diminished (s.139(b) ERA). Employees sometimes tried to argue that, because of a ‘flexibility clause’ in their contracts, the ‘particular kind’ of work which they were required to do was not that which they actually did do, but rather that (very broad) category of work which they could contractually be required to do. If this analysis were correct, the particular employee who has been dismissed because of a diminution in the work which he or she actually did was no more redundant than anyone else with a similar contract, regardless of the functions they actually performed.

In Murray v Foyle Meats Ltd the House of Lords settled this dispute by asking simply whether the employee’s dismissal was causally related to the employer’s diminished need for employees to do ‘work of a particular kind’, that is, not necessarily ‘work of [the] particular kind’ done by the employee (though whether or not the redundancy dismissal was fair would depend, inter alia, on the selection criteria applied and other procedures adopted). For the limits of this approach note their Lordships’ approval of the decision in Murphy v Epsom. See also the approach taken by the Court of Appeal in High Table Ltd v Horst to the question whether there was a diminution in the employer’s need for workers in the ‘place where the employee was so employed’ (s.139(a)(ii) ERA).

Reorganisation or redundancy?

The next issue which arises concerns the border between ‘reorganisation’ and ‘redundancy’. In Lesney Products v Nolan the Court of Appeal distinguished between these categories, denying redundancy payments (of which more, below) to workers effectively removed from their jobs by changes in the terms and conditions applicable thereto (this in cases where there was no reduction in the need for workers). For a more up-to-date analysis, see Safeway Stores plc v Burrell and see Hollister v National Farmers Union and Catamaran Cruisers Ltd v Williams for cases in which the employee’s refusal to accept changes imposed by the employer (albeit changes which the employer had no contractual right to enforce) has amounted to ‘some other substantial reason’ (SOSR) for dismissal.

Returning to cases of redundancy, once the employer has succeeded in establishing that the employee was dismissed for this reason, the tribunal must determine the fairness of the dismissal under s.98 ERA (see 6.2 above). The basic approach is set out in the decision in Williams v Compair Maxam Ltd (see also Thomas & Betts Manufacturing Ltd v Harding). The decision of the Court of Appeal in British Aerospace v Green illustrates the limitations on an employee’s ability to challenge selection. See, more recently, John Brown Engineering v Brown for limitations on the British Aerospace v Green approach.

An employer can avoid liability for a redundancy payment by offering suitable alternative work, unreasonable refusal of such an offer disentitling the employee from payment: see Thomas Wragge v Wood for the approach to reasonableness in this context. See also Thomas & Betts for a case in which a failure to make an offer of available alternative work made a redundancy dismissal unfair.

Activities 6.9-6.116.9 How might an employer intent upon making redundancies avoid findings of

unfair dismissal in respect of subsequent dismissals?

6.10 What is the relationship between redundancy and ‘SOSR’ for dismissal within s.98(4) ERA?

6.11 What test do the courts adopt to the question whether the employee is engaged in ‘work of a particular kind’ for which the employer’s needs have diminished? Why does it matter?



Self-assessment questions1. In which three situations does the question of whether or not someone is

redundant arise?

2. What is the significance of the decision of the House of Lords in Murray v Foyle Meats?

3. When might an employee who finds herself reorganised out of a job be regarded as dismissed for ‘some other substantial reason’ rather than for redundancy? Why does it matter?

4. How can an employer avoid liability for a redundancy payment?


u explain the relevance of ‘managerial prerogative’ and flexibility clauses to the question whether someone is legally regarded as redundant

u explain the relationship between ‘reorganisation’ and ‘redundancy’

u describe the steps an employer should take to ensure that redundancy dismissals are regarded as fair.

6.4 Transfers of undertakings

Essential reading ¢ Collins, Ewing and McColgan, Chapter 10: ‘Restructuring the business’, section

10.5.

¢ Cases: Berriman v Delabole Slate [1985] ICR 546, [1985] IRLR 305; Credit Suisse v Lister [1999] ICR 794; ECM (Vehicle Delivery Service) Ltd v Cox [1999] ICR 1162; Litster v Forth Dry Dock [1989] ICR 341; RCO Support Services v UNISON [2002] ICR 751; Spijkers v Gebroeders [1986] ECR 1119; Süzen v Zehnacker [1997] ICR 662; University of Oxford v Humphreys [2000] IRLR 183; Wilson v St Helens BC [1998] ICR 1141.

A transfer of undertaking takes place when any trade or business or part of a trade or business is transferred, whether by sale or otherwise, from one person (this may include a company) to another. Its significance, for our purpose, relates to the impact upon the employment of those working for the undertaking of the transfer. At common law, the transfer of ownership of an undertaking has the effect of terminating the employment contracts of those employed by the undertaking – Nokes v Doncaster. (There is, however, no ‘transfer’ when a company is sold, as the employees continue to be employed by the same company, rather than by the owners of the company.)

Council Directive 77/187 (the Acquired Rights Directive) was enacted by the European Community in order to provide protection for employees when the business in which they worked was transferred and in 1981 the UK Government enacted the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) in order to give effect to the Directive.

The first question is whether the (proposed) change in employer actually involves a ‘transfer’ under the Directive/ Regulations. This has proven particularly problematic in the context of outsourcing.† In Spijkers the ECJ stressed that a wide variety of factors had to be taken into account in determining the central question: whether the entity has retained its identity. The ECJ adopted a fairly narrow approach in the Süzen case but the domestic courts, which had initially been very reluctant to find that a transfer had occurred in the outsourcing context, are now reluctant to find that that a relevant transfer has not taken place. See, for example, ECM (Vehicle Delivery Service) Ltd v Cox and RCO Support Services v UNISON.

† Outsourcing is the practice of transferring parts of an operation to another body. This is particularly common in the public sector where it is frequently referred to as ‘contracting out’.


Assuming there has been a relevant transfer, the Directive and Regulations, in their current form, provide that all rights and obligations arising under the contract or statute (other than obligations in relation to pensions and criminal liability) are transferred to the incoming employer as if the contract of employment had always been between it and the employee. A dismissal in connection with the transfer will be automatically unfair unless it is for an ‘economic, technical or organisational reason’† (broadly speaking, a redundancy) and liability will pass even if the dismissal takes place prior to the transfer but because of it (for example, in order to get a better price for the business: Litster v Forth Dry Docks). In Wilson v St Helens the House of Lords rejected the argument that dismissals in breach of the Directive/ Regulations should be regarded as void.

Where the transferee attempts to impose changes on the incoming employees (as is common) this will amount to an automatically unfair (constructive) dismissal in connection with the transfer since the ETO defence only applies where the ETO entailed changes in the numbers of workers: Berriman v Delabole Slate. Further, any agreement to alter terms and conditions between the employee and the transferee will be void unless the particular change is (taken individually, rather than as a package) favourable to the individual employee: Credit Suisse v Lister. In Wilson the House of Lords agreed that the Regulations would not prevent changes which were unconnected with the transfer in the sense that the transferor would also have had to make them had the transfer not occurred. Draft new Regulations (2005, intended to be implemented in 2006) propose to alter the position established in Credit Suisse by permitting transferees and employees to reach binding agreements about changed terms and conditions.

An employee who chooses not to transfer will find him or herself without a remedy, (Reg 5(4B)) providing that such a resignation will not amount to an (actionable) dismissal. In University of Oxford v Humphreys, however, the Court of Appeal confirmed that this provision would not apply if the transfer would have resulted in a constructive dismissal by reason of its impact on the employee’s terms and conditions. The draft Regulations propose to alter this position in certain cases in which the disadvantageous new terms have been collectively agreed.

Activity 6.12a. When will a ‘relevant transfer’ take place in the context of an outsourcing

arrangement? Why does it matter?

b. What is the impact on the transferring employee of a relevant transfer?

c. What is the significance of the ETO defence? When does it apply?

d. Under what circumstances can an employee refuse to transfer without losing the right to claim unfair dismissal and/or a redundancy payment?


SummaryThe TUPE Regulations and the Acquired Rights Directive upon which they are based provide protection to employees in the event of a transfer of the undertaking in which they are employed either by way of sale or otherwise. They serve to transfer all the rights and obligations under the contract and statute to the incoming employer but do not affect criminal liability or pension rights. They also protect from dismissal in connection with the transfer, save in the case of (effectively) redundancies.

† Economic, technical or organisational reasons are also known as ETOs.


Self-assessment questions1. In what context do difficulties arise in determining whether a transfer of an

undertaking is covered by the TUPE Regulations/Acquired Rights Directive?

2. What is the significance of the TUPE Regulations to unfair dismissal?

3. Who should an employee sue in respect of a dismissal in connection with a transfer, if the dismissal takes place (a) prior to, or (b) after the transfer?

4. What difficulties will a transferee face in making changes to the terms and conditions of incoming employees?


u explain when the TUPE Regulations apply and describe their effect on the contracts of employees involved in relevant transfers

u explain the relevance of the Regulations to unfair dismissal cases

u describe when employees may refuse to transfer under the Regulations without losing the right to challenge their resulting dismissals.

Sample examination questionsQuestion 1 Edwina, Gillian and Ann are employed as school cooks by Oxbridge County Council.† The Council contracts out its school meals services to Tight Wad plc. Cooks employed by the Council enjoy the terms and conditions of the National Joint Council for Council Workers (NJCCW) which are more favourable than those prevailing in the private sector. When the school cooks present themselves for work on the day following the transfer, Edwina is informed that she will have to change from her current place of work to another school some miles away, which is inaccessible by public transport upon which she relies. Gillian is told that her services are surplus to requirements. Ann is told that, while her basic rate of pay will be maintained ‘in the meantime’, the summer bonus previously paid by the Council will not be continued.

Advise Edwina, Gillian and Ann of any remedies that might be available to them.

Question 2 ‘The law of unfair dismissal is wholly unsatisfactory, and is in need of complete overhaul’.

Discuss, with particular reference to one of the following:

a. the interrelationship between statutory protection and contractual concepts such as the contract of employment, the doctrines of frustration and constructive dismissal; or

b. the application of the reasonableness test.

Question 3 Does the law of unfair dismissal provide an adequate remedy against bullying, harassment and aggressive behaviour by employers and managers towards employees? In what circumstances will courts or tribunals award compensation for the manner of a dismissal?

Question 4 Redford Council, which recognises the Militant Workers Union as the collective representative of school meals workers, contracts out its school meals provision to Yuck plc. Advise the union as to what action may be taken by it or any of its members:

a. if Yuck plc inform the school meals staff that those who are taken on will have their basic wages reduced by 20 per cent, but will be eligible for performance bonuses which ought on average to leave them no worse off;

b. if Yuck plc refuses to take on some schools meals staff who are dismissed by the Council.

Question 5 Discuss the changes made to the law regulating disciplinary dismissals by the Employment Relations Act 2004. What in your view is their significance?

† In recent years a number of cases have arisen where work done by public sector employees has been outsourced to private contractors. There have been numerous industrial disputes when the new employer has tried to reduce costs.


Advice on answering the questionsQuestion 1 This question requires analysis of changes and dismissals imposed in the aftermath of a change in the identity of the business. Can Edwina resist the change of workplace or, in the alternative, claim redundancy, or unfair or wrongful dismissal? The first question relates to whether there is any mobility clause in her contract, or whether one will be implied. If not, has she been constructively dismissed? Is this in connection with a transfer of undertakings? Has a relevant transfer occurred? If it has, does an ETO save the employer from a finding of automatically unfair dismissal? If it does, should she be regarded as redundant? Or dismissed for SOSR? Turning to Gillian, the only question here is whether her dismissal is automatically unfair or whether it might be regarded as having been for an ETO. As for Ann, can she resist the removal of her bonus? Or can she claim it at the time it ought to have been paid?

Question 2 This question gives you a choice of one of two fairly straightforward expositions of unfair dismissal law. You can either discuss the difficulties raised by the reliance of unfair dismissal on contractual concepts (this has the effect, for example, of robbing non-‘employees’ of many employment rights, permitting the doctrine of frustration to preclude otherwise strong unfair dismissal claims and making merely bad or unreasonable treatment, in the absence of an express dismissal, insufficient to found an unfair dismissal claim), or you can discuss the way in which the courts have interpreted the reasonableness test, via the ‘range of reasonable responses’ test, to accord primacy to employers’ perceptions of reasonableness. Ideally you should also discuss the recent challenge to and reaffirmation of that test, and its application in both the substantive and procedural contexts.

Question 3 This question requires discussion of the shortcomings of the law relating to unfair dismissal (in particular, the qualifying periods and the ‘range of reasonable responses’ test), and some comparison with the regulation of harassment on specific grounds by the discrimination legislation in order to determine whether the situation is satisfactory or not. As to the question of compensation, this requires discussion of the decision of the House of Lords in Dunnachie in which their Lordships confirmed (contra some suggestions made in Johnson v UNISYS) that compensation cannot be awarded under the ERA in respect of the manner of dismissal. Compensation for injury to feelings is available, by contrast, under the discrimination provisions.

Question 4 The first general point to be made is that the TUPE Regulations will only apply if the entity retains its identity post transfer. Assuming that this is the case, (a) calls for discussion of the protections afforded to transferred employees, particularly in the light of the Credit Suisse case and (b) for discussion of the prohibition on dismissals except in connection with an ETO, and the transfer of liability to the incoming employer (Litster).

Question 5 Briefly, the Act does away (s.98A) with the decision in Polkey by stipulating that a dismissal will not be unfair for procedural reasons if the outcome would have been the same had the procedure been followed. The Act, however, also introduces a statutory disciplinary procedure which must be followed if the dismissal is not to be regarded as automatically unfair. Employees are also required to utilise statutory grievance procedures if they are not to lose their rights to challenge dismissals and other employment disputes in the courts. The significance of the changes is, in the opinion of many, to downplay the legal significance of procedural fairness, subject to a requirement to comply with a very skeletal statutory procedure.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62

7.1 Trade union membership and activities . . . . . . . . . . . . . . . . . .63

7.2 Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

7.3 Union recognition in context . . . . . . . . . . . . . . . . . . . . . . .66

7 Collective bargaining


Introduction

There have been significant changes in this area in recent years with the introduction of a (limited) enforceable right for trade unions to demand that employers recognise them for collective bargaining purposes. The content and limitations of this approach are considered in this chapter which also looks more generally at the role of trade unions and other collective channels whereby workers can engage in consultation and/or negotiations with their employers.


u outline the protection from discrimination in connection with trade union membership and non-membership

u describe the rights given to workers to engage in trade union activities and duties

u outline the protection afforded by law to workers who wish to have their terms and conditions of employment continue to be determined by collective bargaining

u describe the right to trade union accompaniment

u outline the procedure for statutory recognition

u list the factors which will defeat a claim

u describe when the CAC must require that a ballot be held

u describe the protection available to (a) employees, and (b) trade unions in connection with an application for recognition

u outline the implications for a union of having secured recognition in respect of a particular bargaining unit

u explain the relationship between trade union representatives and employee representatives

u outline the role of such representatives in the context of (a) collective redundancies, (b) transfers of undertakings, (c) parental leave, and (d) the regulation of working time

u describe the protections available to employee representatives.

Labour law 7 Collective bargaining page 63

7.1 Trade union membership and activities

Essential reading ¢ Collins, Ewing and McColgan, Chapter 8: ‘Worker representation and Trade Union

recognition’, sections 8.1, 8.2, 8.3 and 8.5.2.

¢ Cases: Associated Newspapers Ltd v Wilson [1995] 2 AC 454; Bass Taverns v Burgess [1995] IRLR 596; British Airways v Francis [1991] ICR 278; Discount Tobacco Ltd v Armitage [1995] ICR 431; Farnsworth v McCoid [1999] ICR 1047; Fitzpatrick v British Railways Board [1992] ICR 221; Harrison v Kent CC [1995] ICR 434; London Ambulance Service v Charlton [1992] ICR 773; Luce v Bexley LBC [1990] ICR 591; O’Kelly v Trusthouse Forte [1984] QB 90; Post Office v Union of Post Office Workers [1974] ICR 378; Wilson v UK [2002] IRLR 128; Zucker v Astrid Jewels [1978] ICR 108.

International Labour Organisation Convention 98 provides that workers must be protected from anti-union discrimination on the part of their employers. Such protection was first provided by legislation in 1971 and is currently to be found in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), s.137 of which prohibits discrimination in access to employment on grounds of union membership and non-membership (see also ss.138, 140 and 142). For the application of ss.138 see Harrison v Kent and Fitzpatrick v British Railways Board.

Officials of recognised trade unions are entitled to paid time off to engage in trade union duties (s.166 TULRCA and the ACAS Code of Practice on Time Off for Trade Union Duties and Activities), while members of recognised trade unions are entitled to unpaid time off to engage in trade union activities (s.170 TULRCA and the Code of Practice). These rights apply whether the recognition is voluntary or statutory, London Ambulance Service illustrating the application of s.166 (at that time s.27 Employment Protection (Consolidation) Act 1987) and Luce v Bexley that of s.170 (then s.28 EPCA).

Employees (but not those who qualify only as ‘workers’ – see O’Kelly v Trusthouse Forte) are protected by ss.146 and 152–3 TULRCA from discrimination and dismissal on grounds of trade union membership and participation in (appropriate – see below) trade union activities. Provision for interim relief is made by ss.161–166 of the same Act.

The House of Lords, in Associated Newspapers Ltd v Wilson, took a very narrow approach to the scope of ‘membership’ (cf Discount Tobacco Ltd v Armitage). It also narrowly construed the ‘detriment’ then prohibited by s.146 TULRCA so as to exclude omissions on the part of the employer to provide a benefit. This latter point was addressed by the 1999 Act, which amended s.146 TULRCA so as to include omissions within the ‘detriment’ prohibited. In Wilson v UK the European Court of Human Rights ruled that the UK was in breach of Article 11 of the European Convention on Human Rights, which protects freedom of association. The Employment Act 2004 amended TULRCA to prohibit detriment in connection with the use of trade union services and the use of inducements to give up collective bargaining.

In addition to being protected, however imperfectly, against discrimination and dismissal in connection with trade union membership, trade union members are protected in respect of trade union ‘activities’ – see British Airways v Francis and Bass Taverns v Burgess. On the role of employer consent see Post Office v Union of Post Office Workers, Zucker v Astrid Jewels. For protection in the case of withdrawal of consent see Farnsworth v McCoid.

Section 10 of the Employment Relations Act 1999 provides workers (widely defined by s.13 of the 1999 Act) with a right to accompaniment (as distinct from representation) by a trade union official or fellow employee. Section 12 protects workers from detriment and/or dismissal in connection with their exercise of this right. See ss.10(1)(a) and 13(4) and (5) for the fairly narrow range of hearings to which it applies. See also the ACAS Code of Practice on Disciplinary and Grievance Procedures (2004). While the Code of Practice is not binding, failure to follow it is likely to render any resulting dismissal unfair. Trade unions are not, subject to the normal prohibition against sex and race discrimination, required to comply with workers’ requests for accompaniment.


Activity 7.1a. Explain when trade union members will be entitled to time off work for trade

union activities.

b. Explain when employees will be entitled to time off work for trade union duties.

c. Explain when it will it be unlawful for an employer to refuse someone employment for reasons connected with the applicant’s previous trade union activities.


Self-assessment questions1. How broad is the protection given to potential employees from discrimination

in connection with their trade union membership?

2. How limited is the protection given to employees from detriment and/or dismissal in connection with their trade union activities? Is it satisfactory?

3. What is the significance of the decision of the ECtHR in Wilson v UK?

4. Under what circumstances are employees entitled to be accompanied by trade union representatives?


u outline the protection from discrimination in connection with trade union membership and non-membership

u describe the rights given to workers to engage in trade union activities and duties

u outline the protection afforded by law to workers who wish to have their terms and conditions of employment continue to be determined by collective bargaining

u describe the right to trade union accompaniment.

7.2 Recognition

Essential reading ¢ Collins, Ewing and McColgan, Chapter 8: ‘Worker representation and trade union

recognition’, sections 8.4, 8.5.1, 8.5.3, 8.6.1.

¢ Cases: CAC v CSU [1980] IRLR 274; Fullarton Petitioner [2001] IRLR 527; Prison Officers Association (CAC Case No TUR 1/5/00); R v CAC ex p BTP Tioxide [1981] ICR 843; R (Gatwick Express) v CAC [2003] EWHC 2035; R (Kwik-fit) v CAC [2002] ICR 1212; R (NUJ) v CAC [2005] IRLR 28.

‘Recognition’ is the term given to the agreement of an employer to engage in collective bargaining with a trade union (see NUGSAT v Albury Brothers). The bulk of recognition takes place on a voluntary basis. It is important to note the implications that recognition has for various employee and trade union rights, despite the fact that recognition agreements (like collective agreements more generally) are statutorily presumed not to be legally enforceable: s.179 TULRCA. In Chapter 2 we considered the incorporation into contracts of employment of collectively agreed terms.

Trade union membership and the coverage of collective bargaining has fallen considerably in the UK over recent decades. But the overwhelming majority of large employers continue to engage voluntarily in collective bargaining, and recognise trade unions for this purpose. The statutory recognition procedure established by the ERA 1999 complements voluntary recognition agreements, and will encourage some employers who would not otherwise ‘voluntarily’ recognise trade unions so to do.


The Employment Relations Act 1999 inserted a new Schedule A1 into TULRCA which provides a procedure whereby independent trade unions may apply to the Central Arbitration Committee (CAC) for recognition by an employer which employs at least 21 staff and which has refused voluntarily to recognise it for collective bargaining purposes. Recognition applies in relation to workers in a ‘bargaining unit’. The CAC may not entertain the request if a collective agreement affords recognition to another union in respect of workers in the bargaining unit, regardless of whether such an agreement is with an independent union (Prison Officers Association) and regardless also of how many bargaining unit workers are members of the other union (R (NUJ) v CAC). The CAC must also reject applications from:

u unions whose members constitute less than 10 per cent of the bargaining unit employees

u an application from a union in a case in which another union with at least 10 per cent of members also applies

u applications made within three years of a previous unsuccessful application by the same union in respect of the same unit

u joint applications, unless the CAC is satisfied that the unions will co-operate with each other.

TULRCA also makes provision for derecognition applications by employers.

Some of the difficult issues which arise under the statutory procedure include the scope of the relevant bargaining unit (this is ultimately a question for the CAC) but it must be determined, in particular, in view of ‘the need for the unit to be compatible with effective management’. See R (Kwik-fit) v CAC for an illustration of why the bargaining unit may be crucial to the success or failure of the recognition application.

If the CAC is satisfied that a majority of those in the bargaining unit favour recognition it may award recognition in the absence of a ballot. This may be done by the union satisfying the CAC that it has majority membership in the unit but even here a ballot will be ordered if one of a number of conditions is satisfied: see Fullarton Petitioner, R (Gatwick Express) v CAC. If a ballot is to be held the union has a right to communicate with its members by post and to have access to bargaining unit workers during the balloting period. Workers are provided with protection against victimisation in connection with a recognition application and TULRCA (Schedule A1, para 27A) prohibits ‘unfair practices’ by employers and unions in the balloting period.

The CAC has the power, in the last resort, to specify to the parties to a recognition application ‘the method by which they are to conduct collective bargaining’ (this if the employer fails to negotiate despite a recognition award). Recognised unions have a right to the disclosure of information in connection with collective bargaining (see Collins, Ewing and McColgan, section 8.5.2, R v CAC ex p BTP Tioxide and CSU v CAC). They also have rights to be consulted in relation to collective redundancies, transfers of undertakings, health and safety and (in the case of statutory recognition where the CAC has specified a bargaining method) training. These consultation rights are part of wider collective rights introduced as a result of EU law and are considered in section 7.3.

Activity 7.2a. Outline the main requirements for statutory recognition.

b. Describe the sanctions available to the CAC in the event of an employer’s refusal to deal with a union which has satisfied the requirements for union recognition.

c. Describe the test the CAC has to apply in determining the appropriate scope of a bargaining unit. What is the overriding factor? Why is the scope of the bargaining unit so significant?

d. When will the CAC be required to demand that the union hold a ballot prior to the award of recognition?



SummaryStatute provides a right to recognition to representative unions which can demonstrate majority support for recognition within a relevant bargaining unit. Support has to be demonstrated in some cases through a ballot. This right exists alongside the voluntary route which is by far the most common, and provides a measure of last resort for trade unions in the face of recalcitrant employers.

Self-assessment questions1. When is the CAC obliged to refuse applications for recognition?

2. Why might an employer wish to manipulate the scope of a bargaining unit in respect of which a recognition application is made? How easy is this to do?

3. What protection is given to trade unions against employers’ efforts to defeat a recognition claim? How satisfactory is the current position?


u outline the procedure for statutory recognition

u list the factors which will defeat a claim

u describe when the CAC must require that a ballot be held

u describe the protection available to (a) employees, and (b) trade unions in connection with an application for recognition

u outline the implications for a union of having secured recognition in respect of a particular bargaining unit.

7.3 Union recognition in context

Essential reading ¢ Collins, Ewing and McColgan, Chapter 8: ‘Worker representation and trade union

recognition’, sections 8.5.4, 8.6.2 and 8.6.3.

¢ Cases: Clark’s v Bakers’ Union [1978] ICR 1076; MSF v GEC [1994] IRLR 113.

Increasingly, recognised unions are one of several channels through which employees can participate, more or less effectively, in the workplace. Until the implementation of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) Regulations 1995, recognised trade unions and their representatives had a number of rights associated with collective redundancies and transfers of undertakings (note here the special definition of redundancy for these purposes set out at TULRCA s.195).

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999 now provide that if the ‘affected employees’ are ‘of a description in respect of which an independent trade union is recognised by their employer’ consultation must be with the representatives of that trade union. In respect of other affected employers, representatives may either be elected or appointed by the workers for the particular consultation exercise or may already have been elected or appointed by the affected workers and ‘(having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted’ on their behalf about the relevant transfer or dismissals. This returns to recognised trade unions the consultative rights removed by the 1995 Regulations (although for the question of remedy see below).

See MSF v GEC for the extent of information required to be disclosed by the employer and Clark’s v Bakers’ Union for the ‘special circumstances’ defence. Note that the protection and time-off rights previously granted to trade union representatives are applicable also to employee representatives in this context – TULR(C), ss.189–90. The protection extends to omissions as well as acts of the employer. Employers are


not, however, obliged to ensure that representatives elected for the purposes of collective redundancies, transfers, working time or parental leave regulations are trained, or that they are provided with adequate information, professional back-up or physical facilities. The employer is responsible to a significant degree for the election of such representatives – cf. the position under the Safety Representatives and Safety Committee Regulations 1977 (SI 1977/500).†

Turning to the remedy for failure to consult, the trade union or employee representatives (or, by way of default, the affected employees) may complain to an employment tribunal (TUPE, Reg.11 and TULRCA, ss.189–90). The remedy lies in a ‘protective award’ to the affected employees. No injunction is available to prevent dismissals or transfers where the consultation obligations have not been complied with.

Non-union representatives are also a feature of the Working Time and the Maternity and Parental Leave, etc. Regulations (see Chapter 3), being empowered by the regulations to reach workforce agreements on working time and parental leave respectively. In neither case is the employer required to consult with workforce representatives, whether trade union or otherwise. Rather, collective agreements or, in their absence, ‘workforce agreements’ (agreements reached with non-union representatives) replace the default entitlements otherwise provided by the regulations if they deal with the subject matter required by the relevant regulations. In each case the regulations provide that ‘workforce agreements’ may not be reached on behalf of any workers ‘whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement’. This does not, of course, prevent employers from choosing ‘workforce agreements’ in circumstances in which, although recognised unions exist, no collective agreement has been reached in respect of working time or parental leave.

Recent years have seen the implementation of the Information and Consultation of Employees Regulations, which provide some rights to consultation to employee representatives, whether or not there is a recognised trade union, in undertakings which employ at least 51 employees in the UK. The Regulations are discussed in Collins, Ewing and McColgan, Chapter 8, section 8.6.3, but their detail is beyond the scope of the course.

Activities 7.3–7.47.3 To what extent does UK law give recognised unions priority over workplace

representatives?

7.4 What remedies are available against an employer who fails to comply with his or her consultation obligations in the context of collective redundancies or a transfer of undertakings?


Self-assessment questions1. Why might ‘workforce agreements’ be preferable, to many employers, to

collective agreements? To what extent are employers empowered to make that choice?

2. To what extent do the available remedies in respect of failure to consult serve adequately to protect trade union’s and employee representative’s rights?


u explain the relationship between trade union representatives and employee representatives

u outline the role of such representatives in the context of (a) collective redundancies, (b) transfers of undertakings, (c) parental leave, and (d) the regulation of working time

u describe the protections available to employee representatives.

† Look up these Regulations and make a note of the rules for election of employee representatives.


Sample examination questionsQuestion 1 Under what circumstances are employers currently required to consult with their workforce collectively? When will this consultation have to take place, in particular, with trade union representatives? How satisfactory is the current position?

Question 2 What are the implications for domestic labour law of the decision of the European Court in Wilson v UK? How satisfactory has been the British Government’s response to the decision?

Question 3 ‘Worker involvement in employers’ decision-making, either through consultation or collective bargaining, has been greatly enhanced by European Community law.’ Discuss.

Question 4 Advise the Robust Labourers’ Union as to the steps it ought to take to gain recognition by Super Markets Ltd, assuming that 55 per cent of the staff there are its members. How, if at all, would your advice differ if:

a. 20 per cent of staff employed by Super Markets belonged to the Feeble Workers’ Union, which was also considering seeking recognition

b. Super Markets had just concluded a recognition deal with the Suckers Union, which had a single member employed by the company.

Advice on answering the questionsQuestion 1 This calls for discussion both of trade union and of other workplace consultation requirements, that is, both of the general consultation requirements regarding mass redundancies and transfers of undertakings and of the circumstances in which those must take place with unions (i.e. where they are recognised). Finally, you should give your considered views as to whether the position is satisfactory (and, if not, how it might be improved).

Question 2 This calls for a discussion of the Wilson case itself (noteworthy for involving the first successful trade union Article 11 challenge before the ECtHR) and the Employment Relations Act 2004, which extends the prohibitions on detriment/dismissal in connection with trade union membership to cover the use of trade union services, and specifically prohibits the use of inducements to persuade workers to turn their backs on collective bargaining.

Question 3 This requires discussion of those areas in which EC law has required consultation with workers, in particular, collective redundancies, transfers of undertakings and (in outline) the broader information and consultation provisions. In addition, EC law provides a role for unions/employee representatives in the regulation of working time and in relation to parental leave. These roles should be outlined, a brief description of the role of trade unions outside of this context provided, and conclusions drawn as to the relative significance of the EC provisions.

Question 4 A good answer to this question would suggest, in the first place, an approach to the employer for voluntary recognition (this is both sensible and, in any event, is required in advance of a CAC application). It would then briefly go through the statutory steps in the event of a refusal.

a. raises the problem that the CAC will reject both applications if they are made, unless they are made jointly. It will be up to the RLU either to try to pre-empt the FWU’s application (which is a risky approach), or to do a deal with it.

b. requires discussion of the R (NUJ) v CAC case in which the High Court confirmed that there is no requirement that a union be independent or representative in order for an existing agreement to block a subsequent application for recognition. The RLU will have to launch derecognition proceedings in order to dislodge the SU before making a recognition application.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70

8.1 Trade unions and the right to strike: tortious liabilities . . . . . . . . . . .71

8.2 Trade unions and the right to strike: statutory immunities and their loss . .72

8.3 Industrial action and the individual employee . . . . . . . . . . . . . . .74

8 Industrial action


Introduction

The law relating to industrial action is complex. Over the years the courts have developed a structure of tortious liability related to industrial action: those who take or encourage strike action may be liable for economic duress, intimidation, conspiracy and a variety of other torts. Until the 1980s the UK legislature consistently tried to protect strikers from the tortious liability developed by the judiciary. Successive governments did so by rendering trade unions immune from tortious liability and by granting protection against existing tortious liability for strikers. The courts subsequently created new torts and the legislature enacted fresh protections. This continued until the 1980s when successive Conservative administrations rendered trade unions once more liable in tort and gradually reduced and subjected to severe procedural restrictions the legal defences to tortious liability. This chapter considers the whole spectrum of tortious liabilities and defences and immunities therefrom, together with issues such as the impact of industrial action on individuals’ employment rights and the recent legal changes in this area.


u describe the variety of torts to which industrial action can give rise and explain the main ingredients of each

u explain what is meant by unlawful means in imposing tortious liability for industrial action

u outline the possible criminal liabilities to which industrial action might give rise

u explain the significance of the concept of ‘trade dispute’ to the legality of industrial action

u explain when secondary action may be lawful in the UK

u outline the main restrictions on industrial picketing

u outline the TULRCA provisions governing balloting and notice requirements for industrial action

u explain the significance for individual striking employees of the official/unofficial, lawful/unlawful nature of the industrial action in which they are or have been engaged.

Labour law 8 Industrial action page 71

8.1 Trade unions and the right to strike: tortious liabilities

Essential reading ¢ Collins, Ewing and McColgan, Chapter 9: ‘Industrial conflict and the right to

strike’, sections 9.1, 9.2, 9.7.3.

¢ Cases: ABP v TGWU [1989] ICR 557; Barretts & Baird v IPCS [1987] IRLR 3; Crofter v Veitch [1942] AC 435; Falconer v ASLEF [1986] IRLR 331; Hadmor Productions v Hamilton [1983] 1 AC 191; Lonhro v Shell [1982] AC 173; Lumley v Gye (1853) 2 E & B 216; Merkur Island v Laughton [1983] 2 AC 570; Quinn v Leatham [1901] AC 495; Rookes v Bernard [1964] AC 1129; Solihull v NUT [1985] IRLR 211; Stratford v Lindley [1965] AC 269; Thompson v Deakin [1952] Ch 646; Torquay Hotel v Cousins [1969] 2 Ch 106.

The first point to make is that trade unions are liable in respect only of that industrial action which the union has authorised, whether overtly or by inference – but see TULRCA ss.20–21, for the width of the statutory test. Damages awardable against trade unions are limited by TULRCA, s.22. As far as the range of possible tortious liability is concerned, this is a complex area, there being a number of different views about the best way to distinguish between the various different forms of tortious liabity. One way of distinguishing the various types of tortious liability to which industrial action may give rise is as follows:

u interference with pre-existing right, either:

u direct (as in Lumley v Gye, Solihull v NUT), or

u indirect (as in Merkur Island v Laughton)

u interference in trade, business or employment by unlawful means

u simple conspiracy to injure.

The tort of direct interference with pre-existing rights requires either that the contract is actually breached (as in Lumley v Gye, Solihull v NUT) or that unlawful means (for example, inducing a breach of employment contract) are used, in which case interference is sufficient (Merkur Island v Laughton). Lord Denning’s dicta, in Torquay Hotel v Cousins, that mere (bare) interference with contract is sufficient, was never accepted. Where, as in Thompson v Deakin, a contract is merely interfered with (but not broken) and the means used to do so are lawful, no liability arises.

Where unlawful means are used, liability extends not only to indirect (and direct – see Stratford) breach of contract but also to interference in trade, business or employment (see Hadmor Productions v Hamilton, Barretts & Baird v IPCS). The latter may be actionable also on the ground of a threat to commit an unlawful act (this amounts to the tort of intimidation within Rookes v Bernard) or of a conspiracy to use or threaten unlawful means (Rookes v Bernard is an example also of the latter).

The tort of simple conspiracy to injure was established by the House of Lords in Quinn v Leatham. Its scope is restricted by the House of Lords’ decision in Crofter v Veitch.

Issues common to two or more of these torts include the meaning of intention (required for the tort of interference with pre-existing right whether direct or indirect, also for interference with trade, business or employment by unlawful means, threat or conspiracy to use unlawful means) – see Solihull v NUJ and Stratford v Lindley on the adequacy of constructive knowledge, and Falconer v ASLEF for a case in which intention was inferred. By contrast, for the tort of simple conspiracy to injure the intention to injure the plaintiff, rather than to gain oneself, must be predominant – Crofter v Veitch.


Where unlawful means are required for a tort (for example, indirect interference in trade or business or with a pre-existing right), breach of a statute will constitute unlawful means only in restricted circumstances – Lonhro v Shell, and compare with the Court of Appeal in ABP v TGWU (an issue with which the House of Lords did not deal). Any other unlawful act will suffice, including a threat to breach a contract (Rookes v Bernard) and actual breach of the same (Barretts & Baird). An act which is immune from action under the TULRCA cannot be an ‘unlawful act’ for the purpose of founding indirect liability (Hadmor v Hamilton).

The few remaining points which should be made relate to the potential criminal liability incurred by those engaged in industrial action – some potential offences are set out in TULRCA, ss.240–242 (regarding essential services and threats of violence). Section 15 TULRCA prohibits trade unions from using union funds to meet any fines imposed upon members in respect of criminal offences or contempt of court.

Activity 8.1 a. List the type(s) of tortious liability which require that the defendant used

unlawful means and explain what types of unlawful means will suffice.

b. Explain when a tort will be committed by defendants agreeing to use exclusively lawful means.

c. Explain when an act of interference with a contract will incur tortious liability.


Self-assessment questions1. What types of tortious liability may industrial action give rise to?

2. What types of tortious liability may be generated by the use of unlawful means?


u describe the variety of torts to which industrial action can give rise and explain the main ingredients of each

u explain what is meant by unlawful means in imposing tortious liability for industrial action

u outline the possible criminal liabilities to which industrial action might give rise.

8.2 Trade unions and the right to strike: statutory immunities and their loss


strike’, sections 9.2.4, 9.3, 9.4, 9.5, 9.6, 9.7.

¢ Cases: BBC v Hearn [1977] ICR 686; Dimbleby v NUJ [1984] ICR 386; Express v McShane 1980] ICR 42; LU v NUR [1966] ICR 170; Mercury v Scott Garner [1984] ICR 74, Middlebrook Mushrooms v TGWU [1993] ICR 612; Moss v McLachlin [1985] IRLR 76; NWL v Woods [1979] ICR 867; P v NASUWT [2003] ICR 386; Thomas v NUM [1985] ICR 886; University College v UNISON [1999] ICR 204.

The common law having created, over the years, the various tortious liabilities discussed above, statute has intervened from time to time to afford trade unions immunities to those tortious liabilities where various requirements were fulfilled. Prior to 1979 the statutory history had been one of protecting trade unions against attack by the common law: over the succeeding decades, the legislature has progressively restricted the immunities according to the nature of the industrial action itself, together with complex procedural requirements.


The immunities were granted successively by the Trade Disputes Act 1906, the Trade Union and Labour Relations Act 1974 and the Trade Union and Labour Relations (Amendment) Act 1976. The 1906 Act rendered trade unions immune from tortious liability and granted protection from suit to individuals for simple conspiracy; for peaceful picketing at their own place of work; for interference with trade, business or employment and for inducement to breach of contract where those acts were committed ‘in contemplation or furtherance of a trade dispute’ (see Express v McShane, then subsequent legislative revision and Mercury v Scott Garner). The 1974 Act re-enacted and it and the 1976 Act extended the 1906 immunities to cover, inter alia, threats to induce breaches of contract. The 1974 Act also placed limits on the courts’ powers to injunct industrial action. Subsequent legislation then:

u restored trade union liability

u restricted the definition of ‘trade dispute’

u removed immunity from suit, both for the trade union and the individual, in respect of industrial action:

u comprising unlawful secondary action (see TULRCA s.224 and Dimbleby v NUJ)

u taking a prohibited form, such as picketing other than at one’s own place of work (see TULRCA s.220 and Thomas v NUM, Middlebrook Mushrooms v TGWU, Moss v McLachlin)

u taken for a prohibited reason (such as to enforce a closed shop or in support of unofficial industrial action or in support of striking workers of other employers – see TULRCA ss.222-3, and, on a related point, University College v Unison)

u taken without compliance, first, with complex balloting procedures and, subsequently also with notice requirements (see TULRCA ss.226–234A).

Now in order to assess possible tortious liability, you must:

u first consider whether industrial action qualifies as one or more possible torts

u then ask whether it comes within the immunities currently provided by s.219 TULRCA

u then determine whether immunity is lost under ss.220–226 TULRCA.

An apparent liberalisation of attitudes on the part of the House of Lords towards industrial action is suggested by the recent decision in P v NASUWT and balloting requirements were rendered somewhat less complicated by the Employment Relations Act 1999. The restrictions on lawful industrial action, however, remain very tight. Where immunity is lost, not only affected employers but also disgruntled trade union members or, in certain circumstances, members of the public can sue the union or individuals engaged in industrial action (TULRCA, ss.62 and 235A). Where injunctions are sought to prevent unlawful industrial action the American Cyanamid test applies, although note TULRCA s.221(2), NWL v Woods and LU v NUR. See also Messenger Group v NGA.

Activity 8.2a. Explain what types of tortious liability are covered by immunities granted by

TULRCA.

b. Describe how these immunities may be lost.

c. Describe the extent to which industrial picketing is lawful in the UK.


Self-assessment questions1. Under what circumstances, if any, may industrial action be taken lawfully other

than against one’s own employer?

2. Under what circumstances are trade unions liable for the industrial action taken by their members?

3. When will the courts award injunctions against industrial action?



u explain the significance of the concept of ‘trade dispute’ to the legality of industrial action

u explain when secondary action may be lawful in the UK

u outline the main restrictions on industrial picketing

u outline the TULRCA provisions governing balloting and notice requirements for industrial action.

8.3 Industrial action and the individual employee


strike’, sections 9.8, 9.9, 9.10.

The issues to be aware of here include the impact of industrial action on the individual’s contract of employment (Secretary of State v ASLEF, Ticehurst v BT, Sim v Rotherham, Miles v Wakefield, Wiluszynski v Tower Hamlets (see Chapter 2)) and on his or her statutory protection from dismissal. In relation to the latter, of particular significance are the changes introduced by the Employment Relations Act 1999. Whereas prior to 1999 employees were generally stripped of protection from dismissal if they were taking industrial action, s.328A TULRCA now provides that the dismissal of an employee who is taking part in lawful industrial action is automatically unfair during the first twelve weeks of the strike. If the action is unlawful but official (i.e. it has been triggered or adopted by the union, though it falls outside the protection of s.219 TULRCA for some other reason), those who take part are protected from selective dismissal; unofficial strikers are not protected at all (and indeed are blocked from claiming unfair dismissal at all).

Activity 8.3Explain the circumstances under which an employee dismissed during industrial action will be able to claim (a) unfair dismissal (b) automatically unfair dismissal.



u explain the significance for individual striking employees of the official/ unofficial, lawful/ unlawful nature of the industrial action in which they are or have been engaged.

Sample examination questionsQuestion 1 What changes have been made to the law governing industrial action since 1997? How satisfactory is the current position?

Question 2 Outline the current legal position with regard to liability for industrial action. How satisfactory is it?

Question 3 ‘Trade unions can all too readily hold the country to ransom by organising industrial action.‘

Critically evaluate this statement.


Question 4 You are asked to advise the United Trotskyite Union about how it ought to plan future industrial action in the railway industry in which its members work. The purpose of your advice is to enable the Union in so far as possible to avoid incurring legal liability for industrial action, and also in so far as possible to maintain legal protection from dismissal for its members. In particular, the Union has asked you to advise on:

a. the circumstances under which it can call ‘nationwide’ strikes of members who work for a variety of companies in the railway industry

b. the degree of information it has to provide to employers in connection with proposed strike action

c. the circumstances in which striking workers may be lawfully dismissed by their employers.

Advice on answering the questionsQuestion 1 The main changes which have been made relate to balloting requirements on the one hand and the protection afforded to individual striking workers on the other. A good answer would discuss these in the context of the generally restrictive provisions on industrial action.

Question 2 Here you need to consider (a) common law liability for industrial action (b) statutory immunity from those liabilities and (c) the circumstances under which that immunity will be lost.

Question 3 A good answer to this question would begin by considering the legal liabilities arising in relation to industrial action. These include the various tortious liabilities accruing to trade unions and also the circumstances in which union members can be dismissed in connection with industrial action. It would then go on to consider the statutory immunities from liability and, in particular, the conditions to which those immunities are subject (balloting, notice, etc.) before drawing a conclusion as to whether the statement in the question is correct.

Question 4 A good answer would start with a comparatively brief introduction to the legality of this national industrial action, noting the unlawfulness as a matter of common law of such action, the statutory immunities and the gateways to such immunities (in particular, balloting and notice requirements).

Turning then to the matters raised for particular comment:

a. raises questions about the definition of ‘trade dispute’ (there will need to be a trade dispute with each of the employers for the action to be lawful; the balloting requirements (ss.228 and 228A TULRCA – a ballot will have to be carried out in each workplace and strikes called only where there is majority support at the workplace level, or a ballot may be carried out across all workplaces with a single employer, or across all workplaces with a number of employers). What the union cannot do is aggregate some but not all workplaces having the same employer. A brief outline will have to be provided (if not already done) as to balloting and notice requirements.

b. calls for discussion of the law relating to notice to employers, particularly the changes wrought by the 1999 Act and its interpretation in cases such as Connex v RMT.†

c. calls for straightforward discussion of the circumstances in which striking workers may be lawfully dismissed by their employers. Some indication of the common law position is beneficial together with the development of protection by the 2004 Act.

† Connex is a railways operating company, and RMT (= Rail, Maritime and Transport Union) is a trade union representing railway workers.


Notes

Feedback to activities

Contents

Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79

Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81

Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83

Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86

Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89

Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91

Labour law Feedback to activities page 79

Chapter 2

Activity 2.1a. Of particular significance here will be the decision of the Court of Appeal in Dacas.

b. Particularly helpful here is the article by Hepple listed in Useful further reading.

c. Especially useful here is the decision of the Court of Appeal in the O’Kelly case.

Activity 2.2 No feedback provided.

Activity 2.3 These should include any letter of appointment, collective agreement, and works rule book.

Activity 2.4 Significant here is the fact that the written particulars, unless signed as a contractual document, are just the employer’s view of what the contractual terms consist of and are not conclusive as to the contract.

Activity 2.5 a. Your answer should include (but not be limited to) (i) the duty relating to mutual

trust and confidence, the duty to preserve the health and safety of the employee, the duty to pay wages, the duty to provide work, at least where the payment of wages is dependent on this; (ii) the duty of fidelity, the duty of confidentiality, the duty to co-operate.

b. This memo should take into account the decisions in United Bank and in Johnson v Bloomsbury as well as more recent developments in the case law.

c. These might include:

u preventing an employer from relying on the express terms of the contract in such a way as to make the performance of the employee’s contractual duties impossible or nearly so (Akhtar)

u preventing an employer from acting in bad faith in relation to the employee as regards allegations of incapability (Bliss) or enhanced terms and conditions: Transco plc v O’Brien [2002] ICR 721 (discussed in Collins, Ewing and McColgan)

u preventing an employer from conducting itself in such a way as to damage the future employment prospects of its staff (Mahmoud v Bank of Credit and Commerce International)

u arbitrarily denying a dismissed employee discretionary access to share options (Mallone v BPB Industries plc [2002] EWCA Civ 126 [2002] IRLR 452 (discussed in Collins, Ewing and McColgan).

d. Important here is the distinction between an attempt to utilise the term to control the manner of dismissal, and in relation to conduct prior to the dismissal.

e. No feedback provided.

Activity 2.6 You will have to determine whether such a reduction is actually permitted by his contract. Documents which will assist are Albert’s written particulars (particularly if signed by him as a contract); any other documents issued which purport to be a contract; any letter of appointment and any collective agreement. You will also need to consider whether any collective agreement is actually applicable to him and, if so, how.


Activity 2.7 Particularly helpful here is the decision of the Court of Appeal in Gunton.

Activity 2.8 You might like to distinguish between what is lawful in terms of enforced change and what employers can get away with. You will be able to deal better with the latter question after you have looked at remedies for dismissal. As to the former question, it really concerns the extent to which employers can lawfully demand flexibility whether by way of the duty of co-operation (Cresswell) or because the terms of the contract itself requires it (such as in the case of a mobility clause). Also significant here is the extent to which the implied terms (especially the term relating to trust and confidence) modify the operation of express terms.

Activity 2.9 This is really a question about the automatic and elective theories of termination – see question 2 above.

Chapter 3

Activity 3.1 No feedback provided. Remember that the ability to search Internet and web resources is an essential part of your legal education.

Activity 3.2 This presentation should note the non-application in the context of industrial action of the prohibitions on deductions from wages and should set out the common law position as illustrated by the decisions in Miles v Wakefield and in Wiluszynski v Tower Hamlets.

Activity 3.3 a. This explanation should pay attention in particular to the availability of the individual

opt out and the non-application of the Regulations to ‘voluntary’ unmeasured overtime work.

b. See: http://www.dwp.gov.uk/lifeevent/benefits/statutory_maternity_pay.asp.

c. You should have dealt with the operation of ‘workforce agreements’ in relation to the calculation of the 48-hour week in particular.

d. Here you ought to have considered the narrowness of the comparator required by the Regulations and the circumstances under which a worker can compare his or her current terms and conditions with those he or she enjoyed as a full-time worker.

e. This calls for an understanding of the fact that the Regulations apply to ‘workers’ rather than ‘employees’ and that their scope has been extended in recent years to many previously excluded workers (but not to many transport workers).

Activity 3.4 a. Your answer should consider maternity, parental, paternity and adoptive leave.

b. Check this using the Internet.

c. Mary is obliged ‘no later than the end of the fifteenth week before her expected week of childbirth or, if that is not reasonably practicable, as soon as is reasonably practicable’ to notify her employer of (i) her pregnancy; (ii) the expected week of childbirth, and (iii) the date on which she intends her ordinary maternity leave period to start. Mary does not have to provide any notice of her intention to return after maternity leave unless she wishes to do so prior to the end of that leave, in which case she must give 28 days’ notice of her intention to do so.

d. No feedback provided.


e. Your answer needs to indicate the narrowness of the right to emergency leave in its current form: in particular, the fact that it is not intended to permit workers themselves to care for dependent others for more than a few days (that is, until other arrangements can be made).

f. Qua reinforces this point.

Activity 3.5 You will need to find out information such as the age of Cedric’s child and why he says he needs to be at home, as well as the job he does (this to appreciate the arguments the employer is likely to make as regards the practicability of meeting the request). If he is covered by s.80F ERA, the obligations placed on his employers are procedural only but include a hearing, a written response and an appeal.


Activity 3.7 These are:

1. cost

2. ‘detrimental effect on ability to meet customer demand’

3. ‘inability to re-organise work among existing staff” or

4. ‘to recruit additional staff’

5. ‘detrimental impact on quality’ or

6. ‘performance’

7. ‘insufficiency of work during the periods the employee proposes to work’ or

8. ‘planned structural changes’.

The Secretary of State may add additional grounds.

Activity 3.8 This answer might pay particular attention to the fact that the right is procedural rather than substantive (i.e. a tribunal will not challenge the decision reached by an employer who has gone through the correct procedure) and that the remedy for breach is very limited.

Chapter 4

Activity 4.1 This answer should mention briefly the tests suggested by both Lord Templeman and Lord Fraser (the former suggesting two requirements and a number of options, the latter three requirements). Then the answers might include:

a. Muslims, Christians, Bhuddists, new age travellers, Rastafarians

b. Jews, Hindus, Gypsies

c. because of the implementation of the RB Regs.

Activity 4.2 This answer should focus on the fact that the DDA adopts an asymmetrical approach in that it protects only the disabled (except in the case of victimisation) whereas the other legislative provisions protect everyone who is discriminated against on the relevant ground: that is, because of race, sex, sexual orientation, etc., whether the claimant is black or white, male or female, homosexual or heterosexual. As far as the concept of disability is concerned, the main features are that it is medically


based (i.e. it requires a mental or physical impairment) and also demands (except in a few limited cases) that the disabled person is functionally impaired. Accordingly, it does not protect against discrimination on grounds of perceived illness/disability or perceived impairment.

Activity 4.3 The point here is that, whereas the RRA (and the SO Regs and the RB Regs) protect from discrimination ‘on racial grounds’ (and, respectively, on grounds of sexual orientation/religion or belief) the SDA protects from discrimination ‘on grounds of her sex’ (the DDA protects from discrimination ‘on grounds of the disabled person’s disability’). Thus, whereas Weathersfield v Sargeant has the effect of protecting from discrimination on grounds of someone else’s race (the race of someone’s spouse, or child, or that of a customer against whom the claimant has been instructed to discriminate) the same is not true of the SDA. The former approach is more commonplace, the latter applying only to the SDA and the DDA.

Activity 4.4 a. Not generally, save in the case of severe disfigurement (schedule 1 para.3(a)) and,

since 2005, HIV, multiple sclerosis and most forms of cancer.

b. Not at all.

Activity 4.5 The DDA: direct discrimination, disability-related discrimination, failure to make a reasonable adjustment, victimisation. The rest: direct discrimination, indirect discrimination, victimisation. You could include ‘harassment’ in each case, though it is not entirely clear whether this is regarded as a species of discrimination or regulated independently.

Activity 4.6 ‘Requirement or condition’ has been replaced by ‘provision, criterion or practice’; the requirement that the claimant experience ‘detriment’ as a result of the condition etc. has been removed; the stipulation that the condition etc. be one with which a considerably smaller proportion of the claimant’s group than of others can comply has been replaced with one that it ‘puts or would put’ persons of that group ‘at a particular disadvantage when compared with other persons’; and the test for objective justification has been outlined (‘a proportionate means of achieving a legitimate aim’).

Activity 4.7 The SDA, RRA, SORs and RBRs all provide some limited scope for positive action. Section 48 SDA permits employers to provide single sex training, and to encourage female or male applications, in respect of jobs in which, over the previous year, that sex has been significantly under-represented. Section 38 RRA uses similar terms and regulations 26(1) of each the SORs and the RBRs also permit the encouragement of applications from persons of a particular sexual orientation or religion or belief respectively. Section 47 SDA, section 37 RRA and regulation 26(2) of each the SORs and the RBRs permit targeted training by persons other than employers along lines similar to those provided by sections 48 and 38 SDA and RRA respectively and regulation 26(1). In addition, section 47(3) of the SDA permits training to be targeted at those ‘in special need of training by reason of the period for which they have been discharging domestic or family responsibilities to the exclusion of regular full time employment’. Although gender-neutral in form, this provision permits indirect discrimination in favour of women.

All the anti-discrimination provisions also permit some limited positive action by non-employers such as, inter alia, trade unions (sections 49 and 35 SDA and RRA respectively and regulation 26(3) of each the SORs and the RBRs).


Activity 4.8 The answer to this lies in the decision in Clark v Novacold and the fact that disability-related discrimination (as distinct from the newly regulated direct disability discrimination) does not require a comparator. Hence discrimination for a reason related to the disabled person’s disability (because of an absence from work, for example, or a requirement to work part-time) will be regulated (subject to justification) even where a non-disabled person with the same absence or need or desire for part-time work would have been similarly treated.

Activity 4.9 This calls for a discussion of the statutory test for harassment and of the difference it makes. In particular, it is important to note that the express provisions on harassment do not require less favourable treatment on the regulated grounds.

Activity 4.10 The duty of reasonable adjustment imposes an obligation on employers to accommodate, so far as is reasonable, the needs of disabled employees as regards issues such as access, working conditions and (to a degree) job content. It applies only where the disabled person is put at a ‘substantial disadvantage’ by a ‘provision, criterion or practice applied by or on behalf of an employer’ or by a physical feature of the employer’s premises.

Activity 4.11 Note here the statutory provisions establishing vicarious liability and the exceptions thereto. Also, note the overruling of the decision in Burton by the House of Lords in Pearce and the test there established for liability for third party harassment.

Activity 4.12 A sex-related claim under the EqPA requires that the claimant compare herself to an actual comparator engaged in like work, work rated as equivalent, or work of equal value to a comparator employed by the same employer or an associated employer in the same workplace or at a workplace in which the same terms and conditions apply. A claim can be brought under Article 141 in a case in which the employers are not the same or associated but a single source exerts control over the wages of the claimant and her comparator. Under the RRA a claim can be made of discrimination by comparison with a real or hypothetical comparator (i.e. ‘I would have been paid more but for the fact of my race’).

Activity 4.13 The concept of discrimination fits in through the GMF defence which allows an employer to defend a pay difference which is ‘not the difference of sex’ (i.e. neither directly discriminatory nor indirectly discriminatory in the absence of objective justification).

Chapter 5

Activity 5.1 a. Frustration operates automatically to bring to an end a contract in the event

of some overwhelming event unanticipated by the parties which renders the performance of the contract impossible in the absence of fault on the part of either party. Typical examples include the outbreak of war or the sinking of a ship necessary to the fulfilment of the contract (in the absence of express or implied provision having been made for such an eventuality and in the absence of fault). The doctrine may operate in the employment context in the event of long-term illness unprovided for by contract, and imprisonment (Marshall, Shepherd). It sits uneasily with the facts of employment, however, since illness is a normal incident of life and imprisonment does not generally occur in the absence of fault.


b. This should cover the need for a fundamental breach of contract on the part of the dismisser and prompt action on the part of the dismissed, together (ideally) with some discussion of the role of implied terms in this context.

Activity 5.2 a. Contractual terms which might be breached by a dismissal include: notice period,

contractual disciplinary procedure, contractual redundancy procedure.

b. No feedback provided.

Activity 5.3 a. Where the purported dismissal in breach of contract has not been accepted by

the employee (and so has not taken effect), the employee having acted swiftly to take the matter to court; where damages will be an insufficient remedy, where the employee has ‘clean hands’, and (these are cumulative requirements) when trust and confidence is not entirely at an end (save where the employee wishes only to be put through a disciplinary procedure).

b. Damages may be obtained (up to £25,000) in the tribunal, an injunction only in the High Court.

Chapter 6

Activity 6.1 The answer to this is in s.95 ERA: dismissal by the employer with or without notice; non-renewal of a fixed term contract and ‘where the employee terminates the contract… (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct’.

Activity 6.2 The approach as set out in Western Excavating v Sharp is to demand a fundamental breach of contract by the employer (as in contractual constructive dismissal). This is not on its face required by s.95(1).

Activity 6.3 Breach of a term is required for constructive dismissal, but this can be an implied rather than an express term.

Activity 6.4 The date of the termination is the date when the dismissal takes place as a matter of law (i.e. it may be some time after the purported dismissal if an employer fails to give adequate statutory notice). This is important because it may determine whether the employee has sufficient continuous service for the purposes of claiming unfair dismissal or redundancy.

Activity 6.5 The test tends to hold employers only to the standards of other employers (which may be poor) rather than to some objective standard of reasonableness.

Activity 6.6 It has been overruled by s.98A ERA.

Activity 6.7 The employer should ideally follow his or her own disciplinary procedure (assuming it is more protective than the statutory minima). If there is no such dismissal the employer ought to follow the ACAS Code, and must in any event follow the statutory minimum.



Activity 6.9 The employer should follow the steps set out in Williams v Compare Maxam, that is objective redundancy selection criteria, individual consultation and collective discussion, and consideration of alternative employment.

Activity 6.10 Redundancy requires a reduction in the employer’s need for employees to do the type of work done by the employee who wishes to challenge his or her dismissal. If organisational changes result in other changes, dismissal because of the employee’s inability or refusal to comply with the changes will be dismissal for an SOSR and therefore potentially unfair, with no right on the part of the employee to a redundancy payment.

Activity 6.11 The test set out by the House of Lords in Murray v Foyle Meats Ltd is whether the employee’s dismissal was causally related to the employer’s diminished need for employees to do ‘work of a particular kind’, not necessarily ‘work of [the] particular kind’ done by the employee. The answer matters because it facilitates ‘bumping’ by the employer (though always subject to whether the selection criteria and procedures followed were fair).

Activity 6.12 a. Where the undertaking retains its ‘identity’, a question which will turn on a

number of factors including the type of undertaking, whether tangible assets have been transferred, the value of the intangible assets, whether the majority of employees were taken on by the transferee, whether customers were transferred and whether the activities of the undertaking were very similar after and before the transfer. In practice the domestic courts are ready to find relevant transfers.

b. The employee automatically transfers to the incoming employer with all terms and conditions intact (except for pension rights), and continuity dating from the start of employment with the original employer. If the employee is dismissed in connection with the transfer, liability passes to the transferee.

c. Dismissals in connection with the transfer are automatically unfair unless this defence is made out. It applies where ‘economic, technical or organisational changes’ entail reductions in the workforce.

d. Where the transfer would entail a fundamental breach of the employee’s contract of employment.

Chapter 7

Activity 7.1 a. Members of recognised trade unions are entitled to protection from dismissal and

detriment in respect of trade union activities which are carried out either outside working time or during working time and with the employers’ permission (s.146 TULRCA). They are also entitled to time off without pay for trade union activities (s.170 TULRCA).

b. Officials of recognised trade unions are entitled to reasonable paid time off during working hours to carry out duties concerned with (s.168 TULRCA) negotiating with the employer, performing agreed functions on behalf of employees, receiving information in connection with collective redundancies and transfers of undertakings, and training in connection with these duties.


c. Such a refusal is lawful as long as it is not by reason of the fact of trade union membership or non-membership. Having said this, it appears that a generous approach is taken (Harrison) to what is meant by ‘membership’ in this context and (Fitzpatrick) to the protection from detriment/dismissal in connection with (current) trade union ‘activities’, so the gap may be more illusory than real.

Activity 7.2 a. Threshold membership of at least 10 per cent of the relevant bargaining unit by

an independent trade union; a demonstration of majority membership in the bargaining unit, and/or a majority in a recognition ballot; a workforce of at least 21 on the part of the employer concerned; the absence of another recognised union in relation to members of the bargaining unit; the absence of another union seeking recognition in respect of the same bargaining unit, save where a joint application is made; the absence of an unsuccessful application by the same union in respect of the same bargaining unit in the previous three years.

b. an order specifying the method of collective bargaining to be conducted (as distinct from the imposition of terms in default of an agreement).

c. the need for the unit to be compatible with effective management and so far as they do not conflict with that need (my emphasis) ‘the views of the employer and of the union (or unions); (b) existing national and local bargaining arrangements; (c) the desirability of avoiding small fragmented bargaining units within an undertaking; (d) the characteristics of workers falling within the proposed bargaining unit and of any other employees of the employer whom the CAC considers relevant; (e) the location of workers’.

It matters because the manipulation of the bargaining unit could ensure that the union will or will not be able to achieve a majority in favour of recognition.

d. When either the CAC is not satisfied that a majority of the employees in the relevant bargaining unit are union members or it is so satisfied but nevertheless:

u it is satisfied that a ballot should be held in the interests of good industrial relations

u it has been informed by a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf

u membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Activity 7.3 They have clear priority as regards consultation obligations in relation to collective redundancies and transfers of undertakings, and also where they have reached collective agreements with relevance for the provisions of the Maternity and Parental Leave etc. Regulations and the Working Time Regulations. They do not have such priority under the new information and consultation provisions which envisage a dual track approach.

Activity 7.4 Monetary remedies only consisting in a ‘protective award’ calculated as a payment to the employees affected by it.


Chapter 8

Activity 8.1 a. Direct and indirect interference with pre-existing rights, where no contract is

actually breached; interference in trade, business or employment by unlawful means. Unlawful means may consist in an actual or threatened breach of contract but not generally of breach of a statute. An act which is immune from action under the TULRCA cannot be an ‘unlawful act’ for the purpose of founding indirect interference with contract.

b. The tort of simple conspiracy to injure will be committed by defendants agreeing to use exclusively lawful means, if and only if the intention to injure the plaintiff, rather than to gain themselves, is predominant.

c. Direct interference with a contract will incur tortious liability when either the contract is actually breached or unlawful means are used.

Activity 8.2 a. The TULRCA immunities cover simple conspiracy; peaceful picketing other

than secondary picketing; interference with trade, business or employment; inducement to breach of contract and breach of contract.

b. The immunities will be lost where action is not in contemplation or furtherance of a trade dispute (for example, where it consists of secondary action); where it is taken for a prohibited reason such as in support of a closed shop or of striking workers of other employees), or where it is taken other than in compliance with the balloting and notice requirements imposed by the Act.

c. Industrial picketing is lawful to the extent that it is peaceful, limited in numbers and carried out for a lawful purpose, for example peaceful persuasion or the peaceful communication of information.

Activity 8.3 An employee dismissed during official industrial action will be able to claim unfair dismissal if he or she has the requisite period of qualifying service. He or she will be able to claim automatically unfair dismissal if dismissed while on lawful industrial action in the first twelve weeks of the action, and regardless of qualifying service.


Notes

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