This chapter is concerned with the constitutional position of trade unions in the United Kingdom. Modern trade unionism emerged from the industrial revolution to protect the interests of workers, and from the late eighteenth century increased in membership and influence, both of which peaked in the 1970s. There were then about 13 million trade unionists, representing some 60 per cent of the working population. But trade union influence extended more widely, touching the lives of almost every worker in the country, either through the coverage of collective agreements negotiated with employers or employers’ associations, or through legislation on a wide range of matters that trade unions had persuaded governments to introduce.

The concern in this chapter is the “principle” of solidarity in the context of “state” action at EU level. The role of the “state” in promoting solidarity is twofold: first to support and encourage solidarity through autonomous institutions (trade unions) and processes (collective bargaining, collective action, and social dialogue); and second to initiate and develop through “state” institutions its own solidarity measures and programs. The concern has also been to explore and examine that “principle” of solidarity in the context of proposals for renewing the “social contract,” highlighting different conceptions of the social contract, but focusing mainly on that proposed by the ETUC. It is argued, however, that there are both constitutional and institutional problems in relation to EU support for a social contract of this kind, these problems relating to an over-rigid economically liberal constitution and a weak political program in the form of the Social Pillar, both of which predate COVID-19, and both of which seem ill-equipped to meet the challenges presented by the pandemic.

The United Kingdom is a country where the Queen reigns but chaos governs. Chaos caused initially in recent years by the decisions of the Treasury to impose a 10-year programme of austerity with disproportionate burdens on the British population; followed by the distraction and self-immolation of Brexit on the back of a populist referendum in 2016; followed in turn by the domestic impact of the COVID-19 pandemic, which represents one of the greatest public administration failures in modern British history. It will be for consideration at some stage whether these failures were due in part to the programme of austerity and the distraction of Brexit by which they were preceded. Preliminary evidence suggests, however, that there was a state of neglect and unpreparedness before the crisis, as well as a lack of capacity to respond appropriately during it.

The United Kingdom has been a testing ground for neoliberalism and austerity, and their implications for workers’ rights. The real test of any model, however, is how well it copes in a crisis. This would be true of labour law, as of any other area of law or any other institutional arrangements beyond the law. But in determining how well a system of labour law operates in a crisis, it is necessary to have a sense of the discipline's purpose, which is itself contentious. Every type of economy has a system of labour law, though the objectives are clearly very different. The neoliberal vision of labour law will be very different from a social democratic vision – the former emphasising the virtues of flexible employment models and free labour markets, and the latter emphasising high labour standards, job security and different forms of worker involvement in decision making.

The COVID-19 crisis has revealed the abject failure of the neoliberal vision. Correction. The COVID-19 crisis has revealed the spectacular success of the neoliberal vision through the lens of its authors. It has enabled employers to shed labour quickly and to cut pay with a minimum of formality and expense. But with the shifting of responsibility in employment exclusively to the worker, COVID-19 also has serious implications for workers’ communities, on a scale which is completely unsustainable even in the short term.

The right to protection against unjustified dismissal

The law of dismissal plays a pivotal role in labour law. The legal rules governing the employer's power to terminate the employment relationship indirectly control the employer's disciplinary power under the contract. In order to co-ordinate production and to discourage actions that impede the objectives of the business, an employer needs the power to discipline the workforce. The most powerful sanction in support of this necessary disciplinary power is the ability to dismiss employees in circumstances where their continued employment threatens the economic success of the enterprise. Although the threat of dismissal may be carried out infrequently, its presence in the background provides employers with the necessary power to issue instructions that will normally be obeyed. In view of these efficiency considerations, the legal question that arises is not whether the employer should have the power to dismiss employees, but rather what should be the legal constraints on the procedures and substantive grounds for dismissal.

Employees desire protection from dismissal, whether the circumstances justify it or not, because the threat of dismissal impacts upon more than just their livelihood. When an employee terminates the contract by resigning from the job, the employer usually incurs costs and inconvenience. The task of finding a replacement imposes search and recruitment costs upon the employer. Training costs for the replacement employee may also be incurred. When the employer terminates the contract, however, the employee loses his or her main source of income and may forfeit long-term opportunities to augment income through work experience, seniority and promotion. In addition, insofar as work provides an opportunity to create social relations and bonds of friendship, and to establish a position of status in the community, the loss of a job can inflict psychic damage on the employee. The stakes on termination of employment are therefore usually uneven between the parties: the employer needs to incur the costs of finding and training a replacement; an employee is threatened with loss of income and risks social exclusion.

Introduction

As discussed in Chapter 12, the right to freedom of association has several dimensions, including the freedom to be in association with others. It also includes the freedom of the association to govern and administer its own internal affairs, in accordance with the wishes of the members. This is the principle of trade union autonomy, also acknowledged by international law, notably in ILO Convention 87, Article 3.

The principle of trade union autonomy contained in Article 3 is a recognition that self-government is an important end in itself: it should be for workers and not the state to decide how their organisations are to be organised, structured and administered. But it is also a recognition that intrusive regulation of trade union affairs by the state can be debilitating, and undermine the ability of the trade union to perform the functions for which it was created. This is not to deny that there is a role for the state in supervising the activities of trade unions. But, while the ILO supervisory authorities accept that certain restrictions on trade union freedom may be permissible, they also accept that trade unions should not be so burdened by regulation as to be unable most effectively to promote the interests of those they represent.

Most people need to work to earn an income on which to live. Once getting ready for and travelling to work are included, for most workers the bulk of the day will be occupied by the need to work. Yet most people have a biologically fuelled desire to start a family, which requires long periods of care for children. Within families we also incur moral responsibilities towards other members of the family, such as elderly parents or dependent siblings. These family responsibilities often add up in terms of time to the equivalent of a full-time job or more. Furthermore, these family responsibilities, such as the care of babies, are usually regarded as our most compelling moral duties, for which all other interests, including earning a living through work, will have to be sacrificed if necessary. The combination of demanding work and caring responsibilities often places extreme time pressure on employees. Although other demands on our time affect the balance we make between work and other aspects of living, the key issue for most people with regard to the work/life balance is the difficulty of managing the demands of work and family.

The challenge of personal scope

Labour legislation must target its application on particular kinds of work relations. It needs to distinguish, for instance, employment relations from business relations. For the former, labour law provides statutory rights for workers and employees such as a statutory minimum wage or protection from unfair dismissal. In commercial and business relations, however, such as a solicitor's provision of professional services to a client or a hairdresser's grooming for a customer, these statutory rights will not be applicable: the solicitor and the hairdresser cannot insist on being paid a minimum wage by a client nor complain of unfair dismissal if the customer chooses to go elsewhere for these services. This focus of the statutory protections on employment can be explained by its purpose. Most of this legislation aims to protect employees against the misuse of managerial power and instances of exploitation such as low pay. These problems arise typically in contracts of employment where, as we have seen, workers are vulnerable to exploitation of their weak bargaining position and harsh and unfair exercises of managerial power. Labour laws are therefore directed at contracts of employment as the paradigm that merits regulation. The problem addressed in this chapter is whether these laws should also apply to other kinds of contracts involving the performance of services when the contracts in issue closely resemble contracts of employment.

Much of the material in this book is concerned with human rights or fundamental rights. These rights include both civil and political rights, such as the protection of freedom of association, and social and economic rights, such as the right to fair pay and protection against unjust dismissal. As we have seen, all of those rights form part of the Charter of Fundamental Rights of the EU and therefore may influence the interpretation of labour law insofar as it emanates from EU law. Here, we focus on the implications of the Human Rights Act 1998 (HRA 1998) for the protection of individual employees in the enjoyment of their civil liberties at work. The Act provides a mechanism by which the European Convention on Human Rights (ECHR) of the Council of Europe may be legally enforceable in national courts. Without this legislation, individuals who had exhausted the available legal process under UK law were compelled to bring a claim before the European Court of Human Rights (ECtHR) in Strasbourg alleging that the national law failed to secure their Convention rights. This chapter examines the protection of workers’ privacy interests (Article 8), freedom of religion (Article 9) and whistleblowing and other issues relating to freedom of expression (Article 10). Other Convention rights protected under the HRA 1998 that are pertinent to labour law are considered in other chapters.

Interpreting the Human Rights Act

Before examining the detailed application of Convention rights in labour law, it is important to appreciate how the HRA 1998 may effect the interpretation and application of domestic labour law. Furthermore, it is necessary to note how the European Convention on Human Rights, as an international treaty regarding human rights, itself presents unique challenges with regard to its interpretation and evolution.

The wage/work bargain

The legal construction of the core bargain of the contract of employment comprises the promise to perform work in return for a promise to pay wages. The terms of this agreement that fix the nature of the work to be performed and the rate of pay become the legally enforceable obligations. In the absence of such express mutual undertakings, there may be no contract at all for want of consideration. It is therefore sometimes said that the mutuality of obligation, namely, the promise to perform work in return for a promise to pay wages, is an essential element of the contract of employment.

Using the legal principle of freedom of contract, an employer can construct complex systems of payment for work. As well as a regular weekly or monthly salary, the employer may add fringe benefits, incentive payments such as bonuses and commissions, and longer term deferred payments such as pensions to encourage loyalty and discourage labour turnover. The amount payable may be varied according to the hours worked, such as shift systems designed to provide 24/7 services involving unsocial hours. In the illustrative specimen contract given in Chapter 3, the contract purports to provide a guaranteed minimum number of hours, which will lead to a basic weekly pay, but the calculation of the wages due each week depends on further details in an appendix (not supplied) about the shift system and overtime payments, and the guarantee of minimum hours is not absolute. The complexity of these payment systems may often give rise to difficult questions about the interpretation of the small print in the contract and its appendixes.

Introduction

Much of this work so far has been concerned with different ways by which the law is used to empower and protect workers. We have seen how this may be done through the contract of employment, or through regulatory legislation, which now covers a substantial area. Also important as a source of empowerment and protection, however, is the role of trade unions and the process of collective bargaining. By virtue of the latter, trade unions and employers negotiate collective agreements, which regulate the terms and conditions of employment of the workers to whom they apply. These collective agreements may cover both substantive (pay, hours and holidays) and procedural (grievance and disciplinary procedures) issues. Workers covered by a collective agreement will generally be better paid than their counterparts who are not, while workers who are trade union members will be able to call upon their union for support when problems arise at work. But if workers are to enjoy these benefits, they must be free to join trade unions, to take part in their activities and to use their services. That is to say, they must have the right to organise, a right protecting them from sanctions imposed by the state, or from various forms of discrimination by their employer. The right to organise is the first principle of the right to freedom of association, and is considered in this chapter.

The right to freedom of association is a right of great subtlety, with at least three dimensions:

• freedom to be in association with others (in the sense that one may not be restrained or penalised for associating with others);

• freedom in the association of others (in the sense that individuals should be free collectively to decide how their association is to be organised and governed); and

• freedom to act in association with others (in the sense that individuals should be free to act collectively to promote the purposes that brought them together).

The contract of service

People work under many different institutional arrangements. In the past, slavery, forced labour, household servants and feudal serfdom have been significant institutional arrangements for work, each with its distinctive legal framework. During the nineteenth century, as industrialisation spread in Europe, the predominant legal institutional arrangement for paid work was located in the law of contract. The legal analysis used the law of contract to express the idea that, in an economic system where the relations of production were co-ordinated through market transactions, the hire of workers to perform work was like other market transactions – a freely undertaken exchange of goods or services in return for payment. On analogy with the contract for the hire of a thing, the relation between employer and labourer was analysed by lawyers as a contract for the hire of services.

Lawyers drew a further distinction within the category of contracts for the provision of services. Where suppliers of services such as craftsmen and artisans acted independently, managing their own work, the agreements they made with other businesses were labelled ‘contracts for services’. But, where the hirer managed, supervised and controlled the work performed by the labourer, this arrangement was classified as a ‘contract of service’ or, in modern times, a contract of employment.

Introduction

In addition to the long-established practice of collective bargaining over pay and related matters, European law has introduced the practice of mandatory information and consultation to the British scene. These information and consultation rights have grown since first introduced to deal with collective redundancies, and now apply to a wide range of decisions by employers. Attempts have also been made to encourage not only ad hoc consultations on specific events, but also the creation of standing and permanent procedures for the exchange of information and consultation on a wide and indeterminate range of issues. Indeed, information and consultation rights not only apply in respect of decisions taken by employers at the national level, but also extend to information and consultation at the transnational level through the medium of European Works Councils.

These information and consultation rights apply in principle to all workplaces over a certain size (which varies according to the matter in question). In practice, however, they are most likely to arise in workplaces where there is a recognised trade union. This is because, in some cases, the trade union enjoys priority status in the sense that, if there is a recognised trade union, it is the union that the employer must inform and consult. This would be true, for example, of the redundancy consultation procedures. In other cases, although the rights in question may be neutral between trade union and non trade union-based arrangements, the role of the trade union will be crucial in providing the initiative to get the procedures established, and to ensure that representatives are properly trained and supported. This would be true, for example, of the European Works Councils.