Introduction

This is the year of the perfect storm for trade union reps. An ideological attack on hard won employment rights is being conducted alongside escalating cuts and attacks on terms and conditions. Wages are stagnant or falling and work is increasingly insecure and unpredictable. At the same time, the benefits system is undergoing a fundamental overhaul that will hit the poorest the hardest. Those out of work are discovering that established support structures such as Law Centres and Citizens Advice Bureaus are increasingly unavailable, thanks to the withdrawal of publicly funded legal advice across key areas of law, including employment, welfare, housing and debt, just when people need advice the most. Even Lord Neuberger, President of the Supreme Court and Britain’s most senior judge, has spoken out, warning that these changes could result in people “taking the law into their own hands.”

Government hostility to collective representation

As well as attacking individual employment rights, the coalition government is hostile to any collective dimension in the workplace and is waging an ongoing campaign against union facility time. Far from recognising the inherent inequality of bargaining power in the employment relationship, ministers continue to peddle the myth that the law favours workers.

The government continues to claim that employment regulation stifles job creation, even though its own evidence shows this is not true. The most recent example, a 2013 report by the Department for Business Innovation and Skills (BIS), Employer Perceptions and the impact of employment regulation, finds, not only that most employers support a clear regulatory framework, but also that many are not even aware of changes in regulation, and so cannot be influenced by them.

The government also refuses to recognise the wider role played by employment laws in promoting good employer behaviour. On the contrary, ministers seem to go out of their way to support measures that will undermine confidence, morale and job security, such as proposals for “protected conversations”, making it easier to sack workers, or for “employee-shareholders”, making it easier to compensate dismissals cheaply instead of having to pay employees fairly for the value of their unfair dismissal rights.

This year has seen a large amount of legislative change, much of it conducted at breakneck speed by a government anxious to distract from the failure of its austerity policies. In November 2012, the Secondary Legislation Scrutiny Committee announced new government guidelines for public consultation, cutting some timescales for calls for evidence and comment down to just two weeks, and making it practically impossible to produce a reasoned response to proposals.

Such consultation as does take place frequently relies on spin and dubious statistics to support the government’s preferred outcome (for a good example see the recent consultation on changes to the TUPE regime). It also ignores dissenting voices, as illustrated most recently by Chancellor George Osborne’s flagship employee-shareholder policy, which is to be forced onto the statute books despite having been flatly rejected in public consultation and thrown out twice by the House of Lords, in a move described by Labour Peer Lord Adonis as “an act of mercy to the government, let alone the employees adversely affected by it”.

In the case of the most damaging change of all — the introduction of tribunal fees — there has been no consultation at all on the principle of whether fees should be charged or not. The government merely consulted on ways of charging fees.

Government attacks on the European social rights

Under pressure from its own backbenchers, this year has also seen repeated attacks by the government on the role played by European law, especially the employment rights provided under European social legislation, including paid holidays, health and safety, equal treatment for part-time workers and women, TUPE protection on a business sale and a voice at work. The prime minister has pledged that if re-elected, he will offer voters the choice between a new relationship with Europe — “clawing back” these powers — or an exit from Europe by the end of 2017.

As TUC general secretary Frances O’Grady told the European Trades Union Congress in January 2013: “the prime minister wants to repatriate [these] rights, and not because he thinks he can improve them. Cameron wants to make it easier for bad employers to undercut good ones, drive down wages and make people who already work some of the longest hours in Europe work even longer”.

In the meantime, government strategy is to minimise the impact of European legislation wherever possible. In April 2013, it issued updated Transition Guidance: How to implement European Directives effectively and Guiding Principles for EU Legislation. Both publications set out the government’s approach to EU measures, namely:

• To always use “copy-out” where available. This is the practice of literally copying out the wording of the Directive into UK law instead of trying to interpret it or to bring it into line with existing UK laws.

• To end the practice it describes as “gold-plating” of EU laws, where UK legislation provides better protection to workers than the minimum required by European Directive.

• To use alternatives to regulation where possible.

• To ensure UK businesses are not placed at a competitive disadvantage compared with their European counterparts.

• To ensure EU law is not implemented before the deadline set by the Directive.

• To review new EU-driven regulations every five years.

Government attacks on the European Convention on Human Rights

Also under attack is the European Convention on Human Rights (ECHR), with repeated threats that a future conservative government would withdraw from the Convention and scrap the Human Rights Act. The ECHR is increasingly vital to trade unions confronting a hostile government and anti-union balloting laws, condemned by the International Labour Organisation as incompatible with the ILO Convention. The ECHR’s importance for unions has grown in recent years, in particular since the case of Demir and Baykara v Turkey (Case No 34503/97) established that the right to bargain collectively is an integral part of the right to freedom of association under Article 11 of the Convention (see Chapter 5).

Government attacks on powers of judicial review

The government is also introducing measures to limit the scope for others to challenge its decisions. Justice Minister Chris Grayling announced plans in April 2013 to press ahead with restrictions on the judicial review of decisions by public bodies, which the government believes are increasingly sought for “PR purposes”. More than half of those who responded to the government consultation objected to those plans, described by pressure group Liberty as an assault on legal safeguards.

The attack on judicial review of administrative power is particularly troubling given the government’s hostile stance towards the Public Sector Equality Duty (see Chapter 6).

About Law at Work 2013

There has never been a more important time in recent years to be an active member of a trade union and we hope that this edition of Law at Work will make it easier for reps to understand the law, to stand their ground and to build arguments that help their members.

The 2013 edition of Law at Work marks 25 years of the Labour Research Department’s publication of our comprehensive legal guide. It has been thoroughly revised and updated to provide the basic information that will help establish your rights in the workplace and decide whether there is a legal claim to be made. The booklet is not designed to enable an individual or union rep to take a claim right through the court process but it indicates where the relevant law can be found and provides up-to-date examples and illustrations of the law in action.

Law at Work 2013 clearly explains the key areas of employment law so that reps and individuals can identify their legal rights, and unlike most other publications on employment law, it examines the law from the perspective of trade unions and workers. The Labour Research Department’s Case Law at Work series of booklets provides summaries of relevant cases in much greater detail and can be read as a companion to this booklet.

Most trade unions offer their members a legal advice service and any member or rep contemplating taking a legal case should contact their union first. In some unions tribunal cases will be handled internally at district, regional or even head office level. This booklet does not contain individual legal advice and must not be relied on as such.

Differences in law across the UK

Law at Work refers to the legislation as it applies to England, Wales and Scotland (although there are some minor variations in Scotland). However, the principles also apply in Northern Ireland which has its own legislation but with a similar structure.

In England and Wales, decisions from the employment tribunal go to the Employment Appeal Tribunal (EAT) and from there to the Court of Appeal and then the Supreme Court (formerly the House of Lords). In Scotland, appeals from the employment tribunal go to the EAT in Scotland, and from there to the Court of Session and then the Supreme Court.

A significant difference between the Northern Ireland legal system and those in England and Wales and Scotland is that tribunals in Northern Ireland are still called industrial tribunals and there is no Employment Appeal Tribunal (EAT). Appeals from industrial tribunals go straight to the Northern Irish Court of Appeal (and from there to the Supreme Court). Decisions from the two EATs are binding on each other and on employment tribunals in England, Wales and Scotland, and are strongly persuasive in industrial tribunals in Northern Ireland. Judgments of the Court of Session and the two Courts of Appeal are not binding on each other, but bind all courts and tribunals below them.

Case law

The law also changes constantly as a result of decisions made by judges. This is known as case law and examples with their case references can be found throughout this booklet. As well as the legislative changes summarised below, there have been a large number of important cases this year on topics including:

• zero hours contracts (Chapter 2);

• interpreting the law following the landmark case Autoclenz v Belcher (Chapter 3);

• trade union recognition (Chapter 5);

• volunteers and discrimination (Chapter 6);

• religious discrimination (Chapter 6);

• meaning of disability — including obesity and susceptibility to infection (Chapter 6);

• dismissal following a final warning (Chapter 10);

• standards of investigation of alleged misconduct (Chapter 10);

• the band of reasonable responses test and the Human Rights Act (Chapter 10);

• dismissal for political reasons (Chapter 10);

• meaning of “redundancy” under section 139 ERA 96 (Chapter 11);

• redundancy selection (Chapter 11);

• collective consultation and protective awards (Chapters 11 and 12);

• TUPE and what amounts to an “organised grouping” of workers or resources (Chapter 12).