Discuss the role of law in the regulation of the employment relationship in Britain.

Discuss the role of law in the regulation of the employment relationship in Britain

Introduction

The law in this country has played a significant role in the development of industrial relations, and until the last quarter of the 19th century, it was mainly used to control the labour market in favour of employers. We can see instances of this in the Combination Act 1799 (making it a criminal offence for workers to combine together to agree wage rates or conditions) and in numerous acts before and after this. Towards the latter part of the 19th century, we see trade unions formally recognised by the state. The Conspiracy and Protection of Property Act (1875) gave immunity from prosecution, for the offence of criminal conspiracy in, “contemplating or furtherance of a trade dispute”. Political representation followed with the forming of the Labour party and further “immunities” were granted under the 1906 Trade Disputes Act. These laws had a major influence on the employment relationship until the latter part of the 20th century, and this essay will discuss, in more detail the role played by the law, in the development of the employment relationship.

Background

The contract of employment is a contract that is freely entered into by the employer and employee, and both parties are considered equals. However, in reality the employee, who has to work to live and cannot usually negotiate terms and conditions of employment, is in a far weaker position than the employer is. Thus, the relationship is unbalanced and in regulating this relationship, the law is used in favour of the employer. “Laissez faire- let us do as we wish” was the predominant influence of the 19th century. This “liberalism”(Hyman 1975:132), gave the employers the ability to exploit workers as they saw fit, without government interference and although contracts were entered into freely, they would invariably be on the employers terms. Opposition to this exploitation resulted in increasing disputes culminating in the 1906 Trade Disputes Act. The Act, was based on the idea of voluntarism, and let the two sides of industry regulate the employment relationship (Hyman 1995:30). Moreover, this regulation was without state interference except for the minimum floor of rights afforded to workers. Due to the inherent distrust of the law, this “abstentionism”(Hyman 1995:30) was welcomed by labour as well as capital. Moreover, the Trade Disputes Act provided trade unions with further “immunities” from prosecution, as long as they were acting “in contemplation or furtherance of a trade dispute.” and so labour developed a preference for collective bargaining without interference from the law. However, this act did not give workers the legal rights to withhold labour. As Hyman argued (1975:135) this “laissez faire” and “voluntarism” suited employers as long as they had significant control of the work relationship. This position, unique to Britain remained generally the same until the 1970’s.This uniqueness existed because the work relationship in other capitalist countries was regulated without the “laissez faire” tradition, and workers have a more positive right to withhold labour. Whilst the law supported “voluntarism”, it was in fact supporting a relationship in which “unequal power prevailed”(Hyman 1975:132), and so was acting in favour of business.

Although the law favours business within the capitalist system, capitalism faces a paradox, if businesses are to thrive and make profits under this system. The workers who are needed to support the system, will also need to be protected from the worse excesses of capitalism (Kelly 1998:56), otherwise the system will eventually fail. Therefore, when the working class gain economic and political power, they then become a significant market for the goods that they produce (Hendy 1993:10). Due to this contradiction, the laws regulating the employment relationship can now be divided into two distinct sections; employment protection, which provide a ...

This is a preview of the whole essay

Employment Protection

The 1970s saw radical changes concerning industrial relations. The manufacturing sector declined rapidly and the service sector grew. By the 1990s service jobs outnumbered manufacturing jobs, with 3.6 service jobs to every 1 manufacturing job (Employment Gazette 1994a). Women also made up 57% of workers in the service sector (Employment Gazette 1994a). These economic changes also lead to social attitudes changing towards women in work, to the point where women today are expected to work to maintain families financially. During the 1970s a sympathetic Labour government introduced anti discrimination legislation; The Sex Discrimination Act 1975 outlawed discrimination on the grounds of sex or being married. The Race Relations Act 1976 outlawed discrimination on the grounds of race, colour, ethnic or national origin. The Equal Pay Act 1970 did not come fully into force until 1975, this provided for equal pay for men and women doing “like work”. Other individual rights introduced at this time were the right to maternity leave with pay (Employment Protection act 1975). This act also established the Advisory, Conciliation and Arbitration Service (ACAS). This service was set up independently of government departments and had the task of promoting “Industrial peace”. The Labour government at the time may have been sympathetic towards the rights of workers. However, it is noticeable that the Conservative government of the 1980s did not try to change these 1970 laws; instead, “it was expressed in a reluctance to take legislation further” (Liff 1995:463). This reluctance has its roots in reality, due to the changing composition of the workforce in Britain and the changing attitudes to women, now they have joined the labour market.

Health and Safety law was largely ignored until relatively recent times, the first acts were the Factories Act 1844 and the latest act is the Health and Safety at Work Act 1974(HASAWA). The introduction of machinery into the workplace, due to the industrial revolution, and the increasing serious injuries and deaths at work prompted the first health and safety laws. Compensation has been made easier to claim, with the introduction of the Workmen’s Compensation Acts 1897 and the National Insurance Act 1946. However, it is noticeable that health and safety at work has not changed much during the 20th century (Hendy 1993:12). Whilst workplace deaths have fallen in the last 50 years, 1800 in 1950 to 250 in 1994 (Dalton 1998), responsibility for most deaths lies firmly with management (HSE 1982). The Health and Safety Executive is the regulatory body, but is under staffed and seldom visits workplaces. This neglect of health and safety by the law is also reflected in the low level of fines for convictions, in 1994 there were 1429 convictions with an average fine of £2514 (Dalton 1998).

Regulation of Employment

The notion of “Voluntarism” or “collective laissez faire” was firmly espoused by the two sides of industry, and survived until the 1971 Industrial Relations Act. This act was introduced by a conservative government against a background of trade unions, “taking more militant action in an attempt to gain real improvements”(Kessler 1992:18). The act radically changed the way governments looked at the 1906 Acts’ definition of immunities, and a new era began, which was to bring about change in industrial relations using the law. It was an all encompassing act, which tried to deal with picketing, “closedshop”, industrial disputes and most contentiously the registration of unions to be eligible from immunity (Kessler 1992:24). The act was opposed by the union movement and opposition came to a head with some high profile incidents. The highest of these being the imprisonment of “The Pentonville five”, which nearly led to a general strike. However, this Act was eventually repealed by a Labour government, which introduced the Trade Union and Labour Act 1974 (TULRA). The labour government of 1974 came to power partly on the basis that it could deal with trade unions. (Kessler 1992:19) However, this relationship suffered due to high inflation and labours policy of keeping down wages. Consequently, the new Conservative government of 1979 again came to power against a background of industrial unrest and the so-called winter of discontent. However, the consensual approach to industrial relations was abandoned. The new lawmakers of the 1980s had learnt from the collapse of the previous 1971 Industrial Relations Act. Moreover, they now planned a reform of industrial relations step by step instead of in one sweeping Act and as Norman Tebbit the then Secretary of State for Employment stated,

“I was determined first to form public opinion and then to be a little behind rather than ahead of it as I Legislated”(Tebbit, 1988:184).

Consequently, this approach by the new Conservative government was to have dramatic and far-reaching consequences for the regulation of the employment relationship. To form public opinion the new laws had to be introduced “under the cover of Propaganda”(Hendy, 2001:19). Essential to the employment relationship, is the immunity from liability in tort of the trade union movement in “furtherance of a trade dispute”. The conservative government reduced the number of torts for which immunity is given, and redefined a “trade dispute”. This redefinition had the affect of limiting disputes to the narrowest of fields, and outlawed secondary action. Secret balloting was introduced under the 1984 Trade Union Act, and again immunity could be lost if a member was denied the right to vote. Employers helped by these new laws found it easier to get injunctions, and the judges would grant these injunctions almost immediately. These injunctions can restrain a union from taking any industrial action whether or not it is legal, and not abiding by the injunction, can lead the union to contempt of court and result in massive fines.

Moreover, Judges throughout the history of labour relations have constantly expressed a “strong ideological bias against collective action”(Hyman 1975:135). The effect of the judges’ natural bias against the working class cannot be underestimated since “labour law” in this country derives not only from legislation, but also from “common law” which is based on precedents set by judges. Moreover, judges have consistently interpreted law in favour of business and although examples are to numerous to explore here, we can refer to some of the imaginative new torts judges have found unions to be liable. Before the 1980s, Parliament usually legislated to moderate some of common laws more severe judgements, as in the Taff Vale case of 1901, the judges made the strike leaders liable for unlimited damages. This ruling was followed by the 1906 Act, which granted immunities against such liabilities. Since 1979, common law has found strikes illegal on the grounds of the torts of “intimidation,” and “ “unreasonable harassment” “economic duress,” and the “breach of statutory duty” (Hendy 2001:5) but no apparent moves have been made for Parliament to catch up.

It is not only the right to take industrial action that the law has been used to restrict, but it also dictates the way in which a union organizes its internal structure. Considering that companies face a fraction of the rules a union has to, in organizing itself, the law in this instant only adds to the imbalance of power between the two. Unions face obligations from how it spends its’ funds (it cannot pay a members fine in relation to a dispute), to how it appoints its’ officials and this can scarcely be said of companies. Moreover, the law facilitates companies to combine for the pursuit of capital but has always opposed labour from combining usually “by an array of legal devices” (Hendy 1993:13).

Until the last third of the 20th century it was considered, “there is perhaps, no major country in the world in which the law played a less significant role”(Khan-Freund 1954:44). This consideration was supported by both sides of industry and as the best model to follow. However, since the 1970s the industrial landscape has been altered dramatically, by protective and restrictive law. It can be argued, that the law is protecting in some ways but it is mostly restrictive. Legislation follows the political climate of the time, but common law (precedents set by judges) due to inherent ideological bias of judges (Hyman 1975), will almost certainly be on the side of capital. However, not to have legislation interfering at all in the employment relationship would lead to greater restrictions of the labour movement. To repeal all labour law without replacing it would leave workers liable under the common law (Hendy 2001:4). To have no immunities would make all industrial action illegal but with tighter restrictions on the immunities and no possibility of the anti union laws being lifted, by the present” “popularist” government, .it can now be argued that law should play an increasing part for the benefit of the labour movement. One direction this sympathetic law may come from is Europe but the government has successfully blocked most EU directives (Information and Consultation of Employees Directive) or at least diluted them (EU Fundamental Rights Charter). Realizing which laws should apply to the benefit of the employment relationship is not an easy exercise, considering the anti trade union laws were a modification of laws, which were meant to provide protection from the common law. (Hendy 2001:36)

However, one of the first areas that the law, as it now stands can be challenged, is the area of union organization .It is inexplicable as to why a Labour government has not removed these laws from the statue book, and in doing so would bring Britain into line with international law. Convention 87of the International Labour Organization (ILO) states that unions shall be free to draw up their own rules, run their own elections and set objectives free from state interference. This breach of international law by Britain is condemned every year by the ILO. (Hendy 2001:35) Moreover, Britain is a signatory of the ILO conventions, and there can be no justification for this stance. General ignorance by the population of Britain’s position in relation to these international laws is encouraged by the right wing media, but constant lobbying and campaigning seems to be the only way forward. Moreover, the obvious injustice of Britain position as regards union organization make this without doubt, the first area in which the imbalance of power in the employment relationship can be redressed.

Dalton, A. (1998) Safety, Health and Environmental Hazards at the Workplace

Employment Gazette 1994a: Table 1.4 Employees in Employment GB. Employment Gazette January, S12-S13

Hendy, J. (1993) A Law Unto Themselves: the Conservative Employment Laws Institute of Employment Rights.

Hendy, J. (2001) Union Rights and Wrongs: The Reform of Britain’s Anti-Union Laws Institute of Employment Rights.

Hyman, R. (1995) The Historical Evolution of British Industrial Relations in Edwards, P. (ed) (1995) Industrial Relations: Theory and Practise in Britain Blackwell

Hyman, R (1975) Industrial Relations: A Marxist Introduction Macmillan

Kahn-Freund, (1954) “Legal Framework” in Flanders and Clegg 1954.

Kelly, J. (1998) Rethinking Industrial Relations: Mobilization, Collectivism and Long Waves. Routledge.

Kessler, S. Bayliss, F (1992) Contemporary British Industrial Relations Macmillan.

Liff, S. Equal Opportunities: Continuing Discrimination in a Context of Formal Equality in Edwards, P. (ed) Industrial Relations: Theory and Practise in Britain (1995) Blackwell.

Tebbit, N. (1988) Upwardly Mobile George Weidenfeld and Nicolson ltd.

Word count 2259