Perspectives on Labour Law Law in Context

Both of these approaches provide valuableinsights into the underlying policy of the law but they can be rather off-puttingfor students who do not know the international human rights inst

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Perspectives on Labour Law

This is an accessible but thought-provoking introduction to labour law It is suitablefor those coming to the subject for the first time, and it will also be of interest tomore advanced students, including postgraduates, who need to think about thesubject’s broader themes

The academic literature on labour law makes considerable use of human rightsarguments and of economic analysis Both of these approaches provide valuableinsights into the underlying policy of the law but they can be rather off-puttingfor students who do not know the international human rights instruments, orwho have no background in economics This book introduces these wider per-spectives on labour law and then applies them to a selection of topics, includinganti-discrimination law, dismissal, working time, pay, consultation and collectivebargaining, trade union membership and industrial action

A C L Davies is Fellow and Tutor in Law at Brasenose College, Oxford where

she teaches Labour Law and Public Law

The Law in Context Series

Editors: William Twining (University College, London) and

Christopher McCrudden (Lincoln College, Oxford)

Since 1970 the Law in Context series has been in the forefront of the movement to broadenthe study of law It has been a vehicle for the publication of innovative scholarly books thattreat law and legal phenomena critically in their social, political, and economic contextsfrom a variety of perspectives The series particularly aims to publish scholarly legal writingthat brings fresh perspectives to bear on new and existing areas of law taught in universities

A contextual approach involves treating legal subjects broadly, using materials from othersocial sciences, and from any other discipline that helps to explain the operation in practice

of the subject under discussion It is hoped that this orientation is at once more stimulatingand more realistic than the bare exposition of legal rules The series includes originalbooks that have a different emphasis from traditional legal textbooks, while maintainingthe same high standards of scholarship They are written primarily for undergraduateand graduate students of law and of other disciplines, but most also appeal to a widerreadership In the past, most books in the series have focused on English law, but recentpublications include books on European law, globalization, transnational legal processes,and comparative law

Books in the Series

Ashworth: Sentencing and Criminal Justice

Barton & Douglas: Law and Parenthood

Bell: French Legal Cultures

Bercusson: European Labour Law

Birkinshaw: European Public Law

Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal

Cane: Atiyah’s Accidents, Compensation and the Law

Collins: The Law of Contract

Cranston: Consumers and the Law

Cranston: Legal Foundations of the Welfare State

Davies: Perspectives on Labour Law

Davies & Freedland: Labour Law: Text and Materials

de Sousa Santos: Toward a New Legal Common Sense

Detmold: Courts and Administrators: A study in Jurisprudence

Diduck: Law’s Families

Doggett: Marriage, Wife-Beating and the Law in Victorian England

Dummett & Nicol: Subjects, Citizens, Aliens and Others: Nationality and Immigration Law Elworthy & Holder: Environmental Protection: Text and Materials

Fortin: Children’s Rights and the Developing Law

Glover-Thomas: Reconstructing Mental Health Law and Policy

Gobert & Punch: Rethinking Corporate Crime

Goodrich: Languages of Law

Hadden: Company Law and Capitalism

Harlow & Rawlings: Law and Administration: Text and Materials

Harris: An Introduction to Law

Harris: Remedies, Contract and Tort

Harvey: Seeking Asylum in the UK: Problems and Prospects

Hervey & McHale: Health Law and the European Union

Lacey & Wells: Reconstructing Criminal Law

Lewis: Choice and the Legal Order: Rising above Politics

Likosky: Transnational Legal Processes

Maughan & Webb: Lawyering Skills

Moffat: Trusts Law: Text and Materials

Norrie: Crime, Reason and History

O’Dair: Legal Ethics

Oliver: Common Values and the Public-Private Divide

Oliver & Drewry: The Law and Parliament

Page & Ferguson: Investor Protection

Palmer & Roberts: Dispute Processes–ADR and the Primary Forms of Decision Making Picciotto: International Business Taxation

Ramsay: Consumer Protection: Text and Materials

Reed: Internet Law: Text and Materials

Richardson: Law, Process and Custody

Seneviratne: Ombudsmen: Public Services and Administrative Justice

Snyder: New Directions in European Community Law

Stapleton: Product Liability

Turpin: British Government and the Constitution: Text, Cases and Materials

Twining: Globalisation and Legal Theory

Twining & Anderson: Analysis of Evidence

Twining & Miers: How to do Things with Rules

Ward: A Critical Introduction to European Law

Ward: Shakespeare and Legal Imagination

Zander: Cases and Materials on the English Legal System

Zander: The Law-Making Process

For my parents

Perspectives on Labour Law

A C L Davies

Fellow and Tutor in Law, Brasenose College, University of Oxford

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2004

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Table of conventions and foreign legislation xxix

Part I

The demise of collective laissez-faire – the 1960s and 1970s 4

Individualism and deregulation – the 1980s and early 1990s 10

2 Economics perspectives on labour law 19

3 Human rights perspectives on labour law 36

International human rights instruments and domestic law 44

Part II

Rules applicable to workers with family responsibilities 108

Arguments which might support legal intervention 119

Controls over the employer’s reason for dismissal 165

Can an individual be compelled to join a union? 200Can unions set their own membership criteria? 202Can unions compel their members to participate in union

Freedom of association between workers and trade unions 212

Contents xiii

The law on trade unions and strike organisers 227

For many students, the first few weeks of a course in labour law can seem ratherdaunting Many of the subject’s main principles are derived from statute, rather thancase law, so there is less room for the kind of detailed case analysis familiar fromcore subjects like contract and tort And policy discussions play a much greaterrole in labour law than they do in, say, land law or trusts When writing aboutanti-discrimination law, for example, labour lawyers think about whether positivediscrimination should be permitted, or whether employers should be allowed to saythat ‘market forces’ led them to pay men more than they pay women doing equalwork

The subject’s emphasis on legislation and on policy arguments is confusingenough But life gets even more difficult when we look at the way in which labourlawyers construct their policy arguments In what Hugh Collins has termed the

‘productive disintegration’ of labour law, writers now draw on a wide range of otherdisciplines and approaches in order to make sense of the law.1As chapter 1 will show,labour lawyers have traditionally used industrial relations, a branch of sociology, as aframe of reference But this discipline has been joined by various kinds of economicanalysis, arguments from social justice, and the discourse of fundamental humanrights

This array of perspectives on labour law is what gives the subject its fascination.But for newcomers it can seem bewildering Each perspective has its own method-ology and its own set of internal problems To understand a piece of labour lawwriting which draws on economic arguments, it is necessary to understand howeconomists think: the methods they use and the assumptions they make To under-stand a piece of labour law writing which draws on human rights arguments, it ishelpful to understand some of the more theoretical debates about what it means tosay that someone has a ‘right’ And all this must be done whilst students are trying

to absorb the basic rules and principles of a large and highly complex body of law.This book is here to help Its aim is to introduce two of the main perspectivesused in the analysis of labour law today – human rights and economics – and toshow how they play out in some of the key areas of the law It will not be argued

1 H Collins, ‘The productive disintegration of labour law’ (1997) 26 ILJ 295.

xv

xvi Preface

that either perspective is ‘correct’, or preferable to the other Each perspective offersdifferent insights If we work from a single perspective, there is a danger that we willblind ourselves to initiatives which do not fit with our view of the world Collinsargues that this is what happened to many labour lawyers in the 1960s and 1970swho continued to analyse the law using an outdated sociological model.2Equally,however, it is important to remember that the perspectives themselves are far frombeing one-dimensional There are different schools of thought in economics and inthe literature on human rights There is no single ‘economists’ view’ on the nationalminimum wage, for example So we need to develop a nuanced understanding ofthe perspectives themselves

Part I of this book introduces the two perspectives Chapter 1 offers a brief tory of labour law from 1945 to the present, showing how labour lawyers’ argumentshave changed over time At first, the subject was dominated by sociological analysis.But as government policies changed, particularly from the 1970s onwards, rightsand economics became increasingly relevant to labour lawyers’ thinking Indeed,since 1997, the government has explicitly sought to strike a balance between work-ers’ rights and business efficiency Chapter 2 introduces the economics perspec-tive It explains economists’ methodology and identifies two competing schools

his-of thought: neoclassical economics, which tends to be hostile to labour law, andnew institutional economics, which suggests that legal regulation can be beneficial.Chapter 3 introduces the rights perspective It explains the historical development

of international human rights law and discusses some of the complex issues whicharise when we try to interpret rights and to apply them to particular situations.Chapter 4 looks at the way in which labour law is created and applied: at the layers

of international, regional and domestic regulation which make up the subject This

is essential because labour law cannot be understood as a purely ‘domestic’ subject.The UK is not immune to international and regional trends And the rights andeconomics arguments play out in different ways at the different levels, often leading

to conflicts between them Part II of the book applies the insights of rights theoristsand economists to a selection of topics in labour law The aim is to provide anaccessible introduction to each topic, and to demonstrate the interplay between therights and economics perspectives The book concludes with a postscript whichrevisits the arguments of Part I and explores the future prospects of labour law.This book is intended to be read at least twice The first time you read it, use it

as an introduction to the basic principles of labour law and to the policy argumentssurrounding the subject Once you have studied labour law in detail and looked atthe cases and statutes for yourself, I hope you will return to this book, perhaps aspart of your revision The second time you read it, try to use it to develop your ownperspective on labour law, and to think about how you might defend that perspectiveagainst the arguments of others Each chapter concludes with suggestions for furtherreading, and questions to consider while you do the reading Part of the point of the

2 Above n 1.

Preface xvii

further reading is to give you more detail about the law, and a more in-depth account

of the perspectives, than can be given in a relatively short introductory book But

do not be surprised if some of the reading challenges the arguments described inthe relevant chapter One writer might argue that one of the perspectives used doesnot offer any valid insights into the law Another writer might argue that two ofthe perspectives need to be combined in order to understand the law properly Yetanother writer might argue that the law is best explained and developed using anentirely different approach not considered in this book at all This might seem a bitunsettling at first But if you persevere, you will find that the further reading givesyou a much richer understanding of labour law

Anne Davies

Oxford December 2003

The relative slimness of this volume has not prevented me from incurring a number

of debts of gratitude during the course of its development I would like to thankSusan Newbould for first stimulating my interest in labour law I am grateful to

my fellow labour lawyers in Oxford, both past and present, for their support andintellectual companionship: Diamond Ashiagbor, Alan Bogg, Paul Davies, SandraFredman, Mark Freedland, and Chris McCrudden Brasenose College granted me

an invaluable term’s sabbatical towards the end of the project, and I would like tothank my colleagues, particularly Bill Swadling and Arianna Pretto, for protecting

me from interruptions Excellent research assistance was provided by Amir Fuchs Iowe a particular debt to successive generations of Oxford students, who have beenthe unwitting guinea-pigs for this book, for their sharpness and enthusiasm.The series editors for Law in Context, Chris McCrudden and William Twining,offered wise advice during the development of the proposal and helpful comments

on drafts Responsibility for errors is, of course, my own I am indebted to theeditorial staff of Cambridge University Press for their professionalism and efficiency

in seeing the book through to publication

And finally, my biggest debt of gratitude is, as always, to my parents, to whomthis book is dedicated, for their unstinting love and support

xviii

Table of statutes

Coal Mines Regulation Act 1908 101

Disability Discrimination Act 1995 130, 131

Employment of Women, Young Persons and Children Act 1920 101

Employment Protection Act 1975 10, 12

ss 11–16 10, 183

xix

Table of statutes xxi

Employment Rights (Dispute Resolution) Act 1998 167

Equal Pay Act 1970 5, 128, 137, 150

Health and Safety at Work etc Act 1974 187

Human Rights Act 1998 36, 47, 54, 59, 61, 62, 129, 201, 210, 221, 243, 246

xxii Table of statutes

Race Relations Act 1968 5

Race Relations Act 1976 6, 81, 89, 108

Race Relations (Amendment) Act 2000 132

Sex Discrimination Act 1975 5, 6, 81, 89, 108, 111, 112, 130, 131, 151

Table of statutes xxiii

Trade Union Act 1871 4

Trade Union and Labour Relations Act 1974

ss 13–17 10

s 14 12

Trade Union and Labour Relations (Amendment) Act 1976 10

Trade Union and Labour Relations (Consolidation) Act 1992 17, 185, 212, 215

xxiv Table of statutes

Table of statutory instruments

Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)reg 2 89

Table of statutory instruments xxvii

Maternity and Parental Leave (Amendment) Regulations 2002 (SI 2002/2879)

National Minimum Wage Regulations 1999 (SI 1999/584) 148

Occupational Pension Schemes (Contracting Out) Regulations 1996

Social Security, Statutory Maternity Pay and Statutory Sick Pay (Miscellaneous

Amendments) Regulations 2002 (SI 2002/2690) 109

Statutory Maternity Pay (General) Regulations 1986 (SI 1986/1960) 109

Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002

xxviii Table of statutory instruments

Table of conventions and foreign

xxx Table of conventions and foreign legislation

Table of conventions and foreign legislation xxxi

xxxii Table of conventions and foreign legislation

ILO Convention 14 on Weekly Rest (Industry) 1921 100

ILO Convention 26 on Minimum Wage-Fixing 1928 68, 143

ILO Convention 30 on Hours of Work (Commerce and Offices) 1930 100ILO Convention 87 on Freedom of Association and Protection of the Right toOrganise 1948 57, 68, 200, 214, 220

ILO Convention 132 on Holidays with Pay (Revised) 1970 100

ILO Convention 135 on Workers’ Representatives 1971 178, 198

Table of conventions and foreign legislation xxxiii

European secondary legislation

Directive 75/117/EEC (Equal Pay) 150

Art 1 11

Directive 75/129/EEC (Collective Redundancies) 66, 187

Directive 76/207/EEC (Equal Treatment) 128

Directive 77/187/EEC (Transfer of Undertakings) 187

Directive 89/391/EEC (Health and Safety) 187

Directive 92/56/EEC (Collective Redundancies) 187

Directive 92/85/EEC (Pregnant Workers) 109

Directive 93/104/EC (Working Time) 104, 115, 242, 246

xxxiv Table of conventions and foreign legislation

Directive 96/34/EC (Parental Leave) 15, 110, 243

Directive 97/75/EC (Parental Leave) 15

Directive 97/81/EC (Part-Time Work) 15, 64, 107

Annex, cl 3 108

Directive 98/23/EC (Part-Time Work) 15, 107

Directive 98/50/EC (Transfer of Undertakings) 187

Directive 98/59/EC (Collective Redundancies) 187

Directive 2001/23/EC (Transfer of Undertakings) 187

Directive 2002/14/EC (Framework Directive on Informing and ConsultingEmployees) 65, 66, 189, 191, 245

Table of cases

Abrahamsson v Fogelqvist Case C-407/98 [2000] IRLR 732, ECJ Page 132

Advocate General for Scotland v Macdonald; Pearce v Governing Body of MayfieldSchool [2003] UKHL 34, [2004] 1 All ER 339, [2003] IRLR 512 127

Allonby v Accrington and Rossendale College [2001] IRLR 364, CA 134

American Cyanamid v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504, HL

Badeck, Re Landesanwalt beim Staatsgerichtschof des Lands Hessen and

Hessischer Minister Prasident intervening Case C-158/97 [2000] All ER (EC)

xxxvi Table of cases

Clymo v Wandsworth London Borough Council [1989] 2CMLR 557, [1989] IRLR

241, EAT 133, 134

Commission v United Kingdom of Great Britain and Northern Ireland Case 61/81

EC [1982]ECR 2601, [1982] ICR 578, ECJ 11

Costa v ENEL Case 6/64 [1964] ECR 585, [1964] CMLR 425, ECJ 64

Dawkins v Department of the Environment [1993] ICR 517, [1993] IRLR 284, CA128

Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum)Case C-177/88 [1990] ECR I-3941, [1991] IRLR 27, ECJ 111

EC Commission v United Kingdom Case C-383/92 [1994] ECR I-2479, [1994]IRLR 412, ECJ 66

Edwards v Society of Graphical and Allied Trades [1971] Ch 354 [1970] 3 All ER

Harrods Ltd v Remick [1998] 1 All ER 52, [1997] IRLR 583, CA 76

Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union[1973] AC 15, [1972] ICR 308, HL 229

Heinz (HJ) Co Ltd v Kenrick [2000] ICR 491, [2000] IRLR 141, EAT 134

Table of cases xxxvii

Home Office v Holmes [1984] 3 All ER 549, [1984] IRLR 299, EAT 112

Hornby v Close (1867) LR 2 QB 153, 31 JP 148 4

Iceland Frozen Foods Ltd v Jones [1983] ICR 17, [1982] IRLR 439, EAT 70,

165

IRC v Bebb Travel plc [2003] EWCA Civ 563, [2003] 3 All ER 546 147

Internationale Handelsgesellschaft mbH v Einfur und Vorratsstelle f¨ur Getreid

und Futtermittel Case 11/70 [1970] ECR 1125, [1972] CMLR 255, ECJ 64

Irani v Southampton and West Hampshire Health Authority [1985] ICR 590,

Jones v Gwent County Council [1992] IRLR 521, Ch D 169

King v University Court of the University of St Andrews [2002] IRLR 252, Ct Sess

Leverton v Clwyd County Council [1989] AC 706, [1989] IRLR 28, HL 150

London Underground Ltd v Edwards (No 2) [1999] ICR 494, [1998] IRLR 364,

London Underground Ltd v National Union of Rail, Maritime and Transport

Workers [2001] EWCA Civ 211, [2001] IRLR 228 230

Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548, Times, 11

October, ECtHR 60, 68

MacFarlane v Glasgow CC [2001] IRLR 7, EAT 86, 87

McShane and Ashton v Express Newspapers Ltd [1980] AC 672, [1980] 1 All ER

Mandla v Dowell Lee [1983] 2 AC 548, [1983] IRLR 209, HL 127, 128

Marckx v Belgium (Application 6833/74) (1979) 2 EHRR 330, ECtHR 129

Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, [1968] 3

All ER 732, QBD 86, 88

xxxviii Table of cases

Marleasing SA v La Comercial International de Alimentacion SA Case C-106/89[1990] ECR I-4135, [1992] 1 CMLR 305, ECJ 67

Marschall v Land Nordrhein Westfalen Case C-409/95 [1998] IRLR 39, [1997]ECR I-6363, ECJ 132

Mercury Communications Ltd v Scott-Garner [1984] Ch 37, [1983] IRLR 494, CA228

Midland Mainline Ltd v National Union of Rail, Maritime and Transport Workers[2001] EWCA Civ 1206, [2001] IRLR 813 231

Minister of Health v Treatment Action Campaign 13 BHRC 1, 68 BMLR 191,[2002] 5 LR C 216, 2002 (5) SA 721 (CC), SA Const Ct 40

MSF v Refuge Assurance plc [2002] ICR 1365, [2002] IRLR 324, EAT 67

Nagle v Feilden [1966] 2 QB 633, [1996] 1 All ER 689, CA 213

National Union of Belgian Police v Belgium (Application 4464/70) (1976) 1 EHRR

Rainey v Greater Glasgow Health Board [1987] AC 224, [1987] IRLR 26, HL

152, 153