Sources and Institutions of Labour Law (L3) Flashcards
What is the contract of employment?
May be written, oral, explicit or implied.
‘Cornerstone’ of the system of labour law (Kahn-Freund, 1954: 45).
Employees are those workers who have contracts of employment > personal scope.
Mechanism for private ordering of terms and conditions.
How has employment protection legislation developed?
Factory Acts of the 19th century.
Today — wide range of legislation:
Employment Rights Act 1996.
Trade Union and Labour Relations (Consolidation) Act 1992.
Equality Act 2010.
National Minimum Wage Act 1998.
Working Time Regulations 1998.
How have statutes interacted with the contract of employment?
Statute provides minimum ‘floor of rights’ (Lord Wedderburn).
E.g. NMWA.
May influence process of contracting in all sorts of ways, direct and indirect.
Supplemented by staff handbooks, employer policies, custom and practice.
What are codes of practice?
Issued under statutory authority.
E.g. Secretary of State has power under TULR(C)A 1992, s203.
Promote the improvement of industrial relations. Promote desirable practices in conduct by trade unions of ballots and elections.
Advisory Conciliation and Arbitration Service (ACAS).
Code of Practice on Disciplinary & Grievance Procedures 2015.
Not legally binding but can influence proceedings. ACAS Codes are admissible in evidence in ET proceedings.
How did Kahn-Freund define collective agreement?
“A collective agreement is an industrial peace treaty … and at the same time a source of rules for terms and conditions of employment”.
O Kahn-Freund, Labour and the Law (1983), p.154-155.
What does TULR(C)A 1992, s179 set out as the criteria for a collective agreement to be legally binding?
“(1) A collective agreement shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement—
(a) is in writing, and
(b) contains a provision which (however expressed) states that the parties intend that the agreement shall be a legally enforceable contract.”
How are collective agreements included in contracts?
Collective agreements can have legal effects through their incorporation in contracts of employment.
Express incorporation / implied.
Courts today will normally accept that a collective agreement is incorporated into contracts of employment if there is any reference.
How does EU law legislate for labour law?
Treaty of Rome, 1957 European Economic Community. Limited social dimension. Role of the Court of Justice of the EU in developing the acquis.
Regulations (direct effect) and Directives (generally indirect effect).
EU level legislation in many but not all areas of labour relations:
Equality, health and safety, working time, work/family, collective dismissals, right to receive information on working conditions. No legislation on minimum wages (but new directive on adequate minimum wages, right to strike.
How has Brexit affected UK labour law?
EU Withdrawal Act 2018.
Closes the door to EU law.
However, retained EU legislation: EU-derived domestic legislation; Direct EU legislation (Regulations); EU law provisions with direct effect; Retained case law (UKSC, Court of Appeal, Court of Secession can depart but must justify).
UK Parliament is essentially free to repeal or amend labour laws deriving from EU law.
How does the the International Labour Organisation (ILO) uphold international standards?
Founded 1919.
Agency of the UN.
“Universal and long-lasting peace can be established only if it is based on social justice” (Constitution, preamble).
187 member states.
Tripartite structure
Conventions, recommendations and reporting.
How does the Donovan Commission Report 1968 describe employment tribunals?
“An easily accessible, speedy, informal and inexpensive procedure for the settlement of … disputes”.
How do employment tribunals work and what is the legislation governing them?
Industrial tribunal – Industrial Training Act 1964.
Employment judge and two lay reps.
Comprehensive review.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013.
What is the significance of R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51?
Challenge to the lawfulness of fees for employment tribunals.
“A forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs, and those who are vulnerable to long term unemployment.” … claims of ‘social value’ —- para 8.
Paras 66-72 construe access to ET as part of the constitutional right of access to justice (Art 6 ECHR and Art 47 CFREU).
Para 78 barriers can be important hindrance even if they do not restrict access completely.
What is the employment appeal tribunal?
London and Edinburgh.
Employment Appeal Tribunal Rules 1993.
Court of Session judge and lay members.
Appeal from ET only on a point of law.
Legal aid.
Employment tribunals & employment appeal tribunals as ‘victim-complains’ systems.
State enforcement & inspection where potential for criminal sanctions e.g. health and safety, national minimum wage.
What is the Advisory Conciliation and Arbitration Service (ACAS)?
Established 1975 (TULR(C)A s247) to:
Give guidance and advice. Deal with collective disputes. And individual disputes.
Employment Tribunals Act 1996, s18 – statutory obligation to promote settlement.
ETA, ss18A and 18B (Enterprise and Regulatory Reform Act 2013) – mandatory pre-claim conciliation.
