Employment Rights: Past, Present and Future

Employment Rights: Introductory Observations

A book about peoples' rights at work needs to offer a perspective on the way the current employment law regime has developed, and is developing. This is important, if only because of the rapidity with which policy becomes legislation, and case law and principles develop. It also needs to address the policy trends, and political and economic ideologies, which play such a decisive part in the shaping of employment laws. A commentary on these is part of any meaningful consideration of the subject. Ideology, in particular, is a powerful catalyst for change in the employment field, as seen with Conservative legislation in the 1980s and 1990s. It is also readily apparent in the continuing influence of Third Way thinking on New Labour employment and social policies. In particular, the Third Way sees a 'middle way' between old-style social democratic values and regulation, and a Conservative, neo-liberal deregulatory agenda.

Attempts are made by employment law commentators, from time to time, to chart what those 'old style' values really were, and the transformation from Old Labour to New Labour. A common theme is that Old Labour focused much of its concern on redistribution, and countering inequalities of income. It was also concerned with empowerment. Among leading labour law gurus like Kahn-Freund an influential (and still valuable) perspective of the employment relationship was that of the employer as a 'bearer of power', and of the isolated worker who was not a 'bearer of power'. In its inception Kahn-Freund saw the relationship as 'an act of submission' by the worker. In its operation the relationship generally continued as one of 'subordination' – even if this might be concealed by what he referred to as 'that figment of the legal mind' the contract of employment. On the basis of this analysis, concluded Kahn-Freund, the main mission for labour law is to be a 'countervailing force' to counteract such inequality of bargaining power, which is generally inherent in the relationship. As part of New Labour's ideological transformation it has been argued that such concerns, and preoccupations with redistribution of income and power, have given way to an emphasis on promoting equality of opportunity and capabilities: and social rights have become part of a bigger mission, which is to assist workers to participate in the benefits of a stronger labour market, and a more prosperous and competitive economy. It is also the case that a large element in employment law reform since 1997 has been to remove 'barriers to work' and legislate to 'make work pay', as part of the social inclusion agenda. The implementation of that approach began early on with the National Minimum Wage Act 1998, and the Tax Credits Act 1999 (now replaced with the much more comprehensive Tax Credits Act 2002). The 2002 Act undoubtedly provides for such a substantial income transfer from the State to workers that there must be considerable doubt about the adequacy of any analysis that ignores such redistributions. For reasons which are considered in later chapters, including Chapter 22, the increasing levels of financial and other support by the State provide yet another reason why traditional labour law discourses, including those referred to in Hugh Collins' analysis in the 'Productive Disintegration of Labour Law' need to be revised. It is also clear that the bilateral contract-based model, characterised as a predominantly 'private' arrangement between employer and worker needs rapid updating, particularly given the reality that a large section of the labour market now gets a substantial quasi-wage from the State as well as from the employer (in many lowpay cases considerably more than the employer's wage); and that one of the legacies of deregulation of the labour, housing, and other markets, and employers' recognition of the scale of financial support, has been to make such workers heavily reliant on the State. For reasons which are essentially economic, and a mix of competitiveness, macro-economic efficiency, and welfare agendas, the employment relationship has been developing into a tripartite one. In the process, the State has become a significant stakeholder, and there is a growing potential for it to assert its stake when, as it has been doing, it regulates all stages of the employment life-cycle.

A key facet of New Labour thinking in all this has been a pre-occupation with 'personal responsibility', and getting a job to facilitate 'independence'. This focused, initially, on perceptions of individuals' responsibilities to seek employment, and retain it (as part of the government's approach to welfare-to-work, and its New Deal programmes) – but it has progressively extended into other areas of policy and employment. For example, what began as a mild exhortation to employees, and their unions, to help make the 'workplace partnership' ideal work when an early blueprint for reform Fairness at Work was published in 1998 has since found expression in legal requirements to realise this objective – including penalties for not making use of, or following, prescribed dispute procedures before pursuing tribunal litigation options. Another source of employment law that is replete with the language of social partnership, and imbued with its own distinctive set of ideologies about workplace relations, is European Community Law. To the extent that employment law and social policy now takes much of its formal lead from policies of the EC, we need look no further for this than the Treaty Establishing the European Community itself. The original Treaty of Rome was consolidated by the Treaty of Amsterdam and extended by the Treaty of Nice; and it now includes Title VII...