Employment Law

288 Pages·2010·0.938 MB·English

by  Hugh Collins

CLARENDON LAW SERIES
Edited by
PAUL CRAIG
CLARENDON LAW SERIES
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ERICBARENDT 6th edition
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4th edition
PETERCANE
EMPLOYMENT LAW
SECOND EDITION
HUGH COLLINS
Professor of English Law,
London School of Economics and Political Science
1
3
Great Clarendon Street, Oxford OX26DP
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ISBN 978–0–19–956654–9 (Hbk)
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Preface
As this is a short book, it has taken a long time to write. Three editorial
teams for this series have patiently awaited the outcome, whilst I have
tried to discipline the prolifi c legislative progeny of the same number of
British Prime Ministers. In response to my disclosure of what I had been
trying to write, a barrister recently confi ded in me over traditional festive
mulled wine and mince pies that he had always steered clear of employ-
ment law, because it is the most complicated and transient branch of law.
That sobering though accurate indictment of the subject perhaps excuses
some of my dilatoriness, yet it also explains the attraction of the intellec-
tual challenge that has held my attention.
The task has been to give the reader a picture of the whole subject,
which explains in an accessible way how the many layers of legal sources
regulate a central institution of modern society—the employment
relationship—whilst striving to give a perspective on the subject that
will have a longer shelf-life than the next major legislative intervention,
which, if past performance supplies any guide, will be before the print-
er’s ink on this book is dry. To achieve that goal, I have eschewed, albeit
reluctantly and with special exceptions for the tastiest morsels, much of
the traditional fare of British labour law, and replaced it with a concept
of employment law that is founded on what seem to me to comprise
the key themes in the evolving and increasingly dominant European
Community initiatives in this fi eld: social inclusion, competitiveness,
and citizenship.
During the long gestation period for this book, I have incurred too
many intellectual debts to recall and to account for. Students and col-
leagues from many countries have contributed to my appreciation of the
subject, especially my collaborators in other writings, Keith Ewing and
Aileen McColgan. But I have the sense, though they may not feel entirely
comfortable with this attribution of paternity, that my teachers, Mark
Freedland and Paul Davies, and their teachers in turn, Lord Wedderburn
and Otto Kahn-Freund, always exerted the greatest infl uence on the
evolution of my thinking. As is usually the case, I can with greater cer-
tainty gratefully acknowledge a maternal infl uence, that of my colleagues,
Nicola Lacey, Emily Jackson, Elizabeth Barmes, and Claire Kilpatrick,
who cast their friendly but critical eyes over a penultimate draft of what
vi Preface
follows. My special thanks to them, for they persuaded me that it was time
to deliver.
London School of Economics
New Year’s Day, 2003
Preface to the Second Edition
As foretold in the Preface to the fi rst edition, employment law has
continued to evolve rapidly as a result of legislation and judicial innovation.
Some legislation has even been implemented and then abolished in the
seven years between editions. It has been encouraging, however, that
these innovations contained in at least a dozen statutes and even more
subordinate legislation have not required major reorganization of the
work, and that some of the criticisms of the law voiced in the previous
edition have now been addressed. This edition incorporates, in particular,
the changes to European Union law in the Lisbon Reform Treaty, and
the changes to and the consolidation of the whole of discrimination law
contained in the Employment Bill currently before Parliament in the UK,
and due to be enacted in 2010.
London School of Economics
December, 2009
Contents
Table of Cases xi
Table of Legislation xviii
PART I Aims and Techniques of Employment Law 1
1. ‘Labour is not a Commodity’ 3
1 The contract of employment 6
2 The shifting objectives of employment law 14
3 An emerging European model 20
2. Regulating the Workplace 27
1 Compliance, refl exivity, and procedural regulation 27
2 Regulating contracts 32
3 The case for mandatory regulation 42
4 Globalization and levels of regulation 45
PART II Social Inclusion 51
3. Opportunity and Discrimination 53
1 Proving discrimination 56
2 Justifying discrimination 63
3 Eradicating discrimination 74
4. Work and Life 77
1 A living wage 80
2 Equal pay 87
3 Flexible hours 91
4 The role of government 95
PART III Competitiveness 99
5. Cooperation 101
1 Mutual trust and confi dence 105
viii Contents
2 Adaptation 108
3 Formality 109
4 Grievances 110
5 Human capital 111
6 Flexibility and fairness 116
6. Partnership 117
1 Promoting collective bargaining 121
2 Consultation mechanisms 127
3 Stakeholder organizations 131
4 Industrial democracy 133
7. Competition and Industrial Action 136
1 Migration 137
2 State aid 140
3 Industrial action 141
4 Contractual restraints on competition 153
8. Discipline and Dismissal 160
1 Contractual protection 162
2 Collective self-regulation 170
3 Mandatory regulation 172
4 The standard of fairness 176
5 The problem of compliance 180
9. Economic Security 183
1 Contractual allocation of risk 186
2 Safeguarding deferred pay 188
3 Economic dismissals 190
4 Transfers of businesses 198
5 Corporate insolvency 202
PART IV Citizenship 207
10. Civil Liberties at Work 209
1 Rights talk 209
2 The European Convention on Human Rights 213
3 Privacy 217
4 Freedom of expression 226
5 Dress and grooming codes 232
Contents ix
11. Social Rights 235
1 An integrated approach 236
2 Health and safety 239
3 The right to organize 244
4 The right to strike 249
5 The right to work 253
6 Rights and citizenship 255
12. Shelf-life 256
Index 261