Sir Patrick Reginald Evelyn Browne , PC , OBE , TD (28 May 1907 – 1 October 1996) was an English judge, who was a Lord Justice of Appeal between 1974 and 1980.
260-597: Nethermere (St Neots) Ltd v Gardiner And Another [1984] ICR 612 is a UK labour law case in the Court of Appeal in the field of home work and vulnerable workers. Many labour and employment rights, such as unfair dismissal , in Britain depend on one's status as an "employee" rather than being "self-employed", or some other "worker". This case stands for the proposition that where "mutuality of obligation" between employers and casual or temporary workers exists to offer work and accept it,
520-639: A Certification Officer can hear complaints about malpractice, make inquiries, and issue enforcement orders, which can in turn be appealed to the High Court. For example, in Ecclestone v National Union of Journalists Jake Ecclestone, who had been the Deputy General Secretary of the National Union of Journalists for 40 years, was dismissed by the executive. He attempted to run for election again, but
780-566: A closed shop system of requiring all workers to join the recognised union. The wage councils were dismantled. A public campaign against the merits of unions paralleled the decline of membership and collective agreement coverage to under 40 per cent. In addition, the government opted out of the EU Social Chapter in the Maastricht Treaty . In 1997 the new Labour government brought the UK into
1040-517: A fair dismissal and a redundancy payment, and the duty to contribute to the National Insurance fund and pay income tax . The scope of the terms "worker", "employee", and others, are more or less left to the courts to construe according to the context of its use in a statute, but someone is essentially entitled to more rights if they are in a weaker position and thus lack bargaining power . English courts view an employment contract as involving
1300-514: A "contract of employment" and therefore entitled to unfair dismissal rights under s 153 of the Employment Protection (Consolidation) Act 1978 (now s 94 Employment Rights Act 1996). The Industrial tribunal held that there was a contract of employment, applying the test of whether the ladies could be said to be in business "on their own account". The Employment Appeal Tribunal dismissed the employer's appeal on this point, finding in favour of
1560-471: A "standard procedure" model requires between 2 and 25 elected employee representatives having the right to be consulted on an ongoing basis: that is, an elected work council . A negotiated agreement can cover more issues than the model (for instance, to integrate health and safety issues in one council) if the parties choose. Crucially, consultation is not merely an exercise in management telling staff about their decisions, but requires meaningful dialogue "with
1820-437: A 'worker': someone who has a contract for work in return for a wage, or an indirect quid pro quo (as in a communal cooperative), and also stands as the more vulnerable party to the contract. This reflects the kernel of classical labour law theory, that an employment contract is one infused with " inequality of bargaining power ", and stands as a justification for mandating additional terms to what might otherwise be agreed under
2080-468: A ballot must be held where over 50 per cent of staff favour a new procedure. For example, in Stewart v Moray Council , after 500 teachers requested a new procedure (over 10 per cent of staff, but under 40 per cent), the employer argued that a ballot had to be held, because the existing collective agreement with the union had a protocol on information and consultation. The Employment Appeal Tribunal , rejecting
2340-607: A child under the age of 6, or a disabled child under age 18. The right to make the request is contained in Employment Rights Act 1996 section 80F, and despite the fact that employers may decline the request, employers grant requests in 80% of cases. An employee must make the request in writing, the employer must reply in writing, and can only decline the request on the basis of a correct fact assessment, and within 8 grounds listed in section 80G, which generally concern business and organisational necessity. In Commotion Ltd v Rutty
2600-414: A child's issues at school, as well as other emergencies such as dependents' illness or death, so long as the employee informs the employer as soon as reasonably practicable. In Qua v John Ford Morrison Solicitors , Cox J emphasised that there is no requirement to deliver daily updates. After Employment Act 2002 , employees gained the right to request flexible working patterns for the purpose of caring for
2860-504: A commitment to work together for the enterprise's success. In 2010, around 32 per cent of the UK workforce was covered by a collective agreement, leaving around two-thirds of the British workforce with little influence over the terms of their work. Traditionally, if workers organise a union, their last resort to get an employer to the bargaining table was to threaten collective action, including exercising their right to strike . In addition,
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#17329084978993120-599: A company could dismiss employees without notice, a combination of employees in a trade union were punished for withdrawing their labour. The case led trade unions to form a Labour Representation Committee, which then became the Labour Party , to lobby for the reversal of the law. After their landslide victory in the 1906 general election , the Trade Disputes Act 1906 enshrined the essential principle of collective labour law that any strike "in contemplation or furtherance of
3380-428: A company. From 2015 to 2019, the " personal allowance " was linked to the minimum wage, but only up to 30 hours a week of pay (as if people usually had a three-day weekend ). This link was cut, and there is no personal allowance for National Insurance contributions, which fund the state pension, unemployment insurance (now partly the universal credit ), and the insolvency fund. While self-employed people generally pay
3640-451: A conflict of evidence in relation to the matters referred to in paragraph 8, the tribunal would not have resolved the conflict but as far as we can see the contents of paragraph 8 were not a matter of dispute and therefore, bearing in mind the opening words of paragraph 11, in our judgment the tribunal was accepting as fact the whole of paragraph 8. At the end of the argument, we asked counsel for further submission as to whether, in paragraph 8,
3900-468: A contract of employment on any particular day. They were invited to work. They were told that work was available if they presented themselves and the last word was with those offering their services. They did not have to come if they did not want to." We do not accept that the Mailway case is authority for the proposition as framed by Mr. Blair, that once it is found that there is no obligation on either side it
4160-485: A correct interpretation of the parties' relationship. [...] There must, I accept, be evidence to support that contract, otherwise there would be an error of law or a decision which no reasonable tribunal could have reached. I think that means evidence at least of an obligation to accept work offered by the company, and on the authority of Devonald v. Rosser & Sons [1906] 2 K.B. 728, the obligation to accept piecework would imply an obligation to offer it. I agree that
4420-515: A duty to inform their employees of their workplace pension rights, although a lower court stopped short of requiring employers to give advice on qualifying for workplace disability benefits. The key implied term is the duty of good faith , or " mutual trust and confidence ". This is applied in many circumstances. Examples include requiring that employers do not act in an authoritarian manner, do not call employees names behind their back, do not treat workers unequally when upgrading pay, do not run
4680-551: A fellow, in 1925, the year of his mother's death. He read Law and was called to the bar by the Inner Temple in 1931. The same year, he married Evelyn Sophie Alexandra ( d 1966), daughter of the archaeologist Sir Charles Walston , a family friend. They had two daughters, the elder of which was Harriet Crawford . After Evelyn's death, he married Lena Atkinson in 1977. On the outbreak of the Second World War in 1939, he joined
4940-511: A forum for social deliberation and activism. Collective agreements , which unions make with employers, usually aim to set fair scales of pay and working hours, require pensions, training and workplace facilities, and update standards as the enterprise changes. Trade union bargaining power rests, in the last resort, on collective action. To balance employer power to change the employment relation's terms, or dismiss staff, an official trade union has been protected by law in its right to strike. Since
5200-408: A good faith trade dispute as an implied term in every employment contract. On the other hand, differently composed courts have asserted that the common law position sits at odds with international law: that a strike is a breach of contract, and this creates tortious liability for unions organising collective action, unless it falls within an immunity from statute. On this view, even though an employer
5460-549: A growing list of minimum statutory rights, such as the right to reasonable notice before a fair dismissal and a redundancy payment. Labour governments through the 1960s and 1970s were troubled by reform of the unwieldy trade union system. Despite producing reports such as In Place of Strife and the Report of the committee of inquiry on industrial democracy which would have codified union governance, and created more direct workplace participation, reform did not take place. From 1979,
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#17329084978995720-513: A lesser extent. This is a clear indication that the applicants were not bound to serve and equally that the employers were unable to order the applicants to do the work. The importance of this state of fact was recognised in Mailway (Southern) Ltd v Willsher [1978] ICR 511 and in Airfix Footwear Ltd v Cope [1978] ICR 1210. The applicants were not obliged to present themselves at fixed hours at
5980-655: A level steadily declining below 30 per cent. Most advances in labour rights since 1997 came through EU law , such as paid holidays, information and consultation, or spreading equality. Since 2010, the coalition government continued a programme of labour rights by requiring people who take zero hour contracts to get unemployment insurance, and frustrating the right to strike in the Trade Union Act 2016 . This has led to consistently rising inequality since 1979, and to large increases in child poverty since 2010. UK labour law's main concerns are to ensure that every working person has
6240-410: A majority of the appeal tribunal, without any ascertainable misdirection in law, is Mr. Tabachnik's second submission right that the decision is one which no reasonable tribunal could have reached, if properly directed on the evidence before it? I have already answered that question. On the evidence there was just enough material to make a contract of service a reasonably possible inference in favour of
6500-475: A minimum charter of rights in their workplace, and voice at work to get fair standards beyond the minimum. It distinguishes self-employed people, who are free to contract for any terms they wish, and employees, whose employers are responsible for complying with labour laws. UK courts and statutes also, however, give more or fewer rights to different groups including "worker", "jobholder", "apprentice" or someone with an "employment relation". A "worker", for example,
6760-525: A minimum wage and paid leave. The contract terms could be disregarded because they did not represent the reality of the situation. The second major category is of a 'worker'. This is defined in Employment Rights Act 1996 section 230 as someone with a contract of employment or someone who personally performs work and is not a client or a customer. This means all employees are workers, but not all workers are employees. Non-employee workers are entitled to
7020-445: A mutual obligation to provide and perform work is a factor by which to test whether there was a contract of service and that it is difficult to envisage such a contract without some such obligation, it would be wrong to take this as the decisive factor. He submits that the employers' contention that once it is found that there is no mutual obligation there cannot be a contract of service even though there may be factors pointing strongly to
7280-447: A new Conservative government began dismantling most labour rights . During the 1980s ten major Acts gradually reduced the autonomy of trade unions and the legality of industrial action. Reforms to the internal structure of unions mandated that representatives be elected and a ballot is taken before a strike, that no worker could strike in sympathetic secondary action with workers with a different employer, and that employers could not run
7540-434: A pension trust must be partly codetermined by the pension beneficiaries, so that a minimum of one third of a trustee board are elected or " member nominated trustees ". The Secretary of State has the power by regulation, as yet unused, to increase the minimum up to one half. Trustees are charged with the duty to manage the fund in the best interests of the beneficiaries, in a way that reflects their preferences, by investing
7800-410: A preferential over creditors, except those with fixed security. However, defined benefit schemes are also meant to ensure everyone has a stable income regardless of whether they live a shorter or longer period after retirement. The Pensions Act 2004 sections 222 to 229 require that pension schemes have a minimum "statutory funding objective", with a statement of "funding principles", whose compliance
8060-500: A qualifying period of a month, and in principle can only be dismissed for a fair reason. Employees are also entitled to a redundancy payment if their job was no longer economically necessary. If an enterprise is bought or outsourced, the Transfer of Undertakings (Protection of Employment) Regulations 2006 require that employees' terms cannot be worsened without a good economic, technical or organisational reason. The purpose of these rights
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8320-621: A question of construction to be decided by the appeal tribunal or this court as a question of “pure” law. But for the reasons I have given, which are not those of the appeal tribunal but are those required by the majority judgments in O'Kelly v. Trusthouse Forte Plc [1983] ICR 728 , I would dismiss the appeal. It followed that the ladies were under a contract of employment (however compare the definition of "mutuality" given in Carmichael v National Power plc , by Lord Irvine of Lairg ). The Employment Appeals Tribunal ([1983] ICR 319) before appeal to
8580-470: A reasonable belief in their truth, not for personal gain, and need not be made first to employers if the employee reasonably believes they may be subject to detriment. This does not protect employees against breaching the Official Secrets Act 1989 . Beyond privacy and expression, the human rights that also affect the workplace include the right to a fair trial , the right to property, and critically
8840-541: A reasonable expectation of privacy. In Smith and Grady v United Kingdom the Court held that the private life of a woman in the Royal Air Force was violated after an investigation and intimate questioning of her sex life and HIV status. Then, in Copland v United Kingdom the Court found that it violated ECHR article 8 for a manager to monitor the calls and internet use of an employee, and then insinuate and gossip about
9100-484: A relation of mutual trust and confidence , which allows them to develop and enlarge the remedies available for workers and employers alike when one side acts out of bad faith . The UK has not yet codified a single definition of who is protected by labour rights. The law has two main definitions (employee and worker) and three minor definitions (jobholder, apprentice, and an "employment relation") each with different rights. EU law does have one consolidated definition of
9360-442: A right to a reasonable amount of time off during work hours also to participate in meetings about agreements with the employer, or voting for elections. An ACAS Code of Practice sets out the general guidelines. A final "right" is that under TULRCA 1992 a worker may not be compelled to become a union member in what used to be called closed shop arrangements. Collective agreements had required that employers did not hire anyone who
9620-421: A right to be represented by union officials in any disciplinary or grievance meeting under Employment Relations Act 1999 sections 10-15. This can be particularly important when a worker is in trouble with management. Fourth, an employer must permit officials of independent trade unions, which it recognises for collective bargaining, to a reasonable amount of time off to fulfill their role. Also, union members have
9880-651: A right to inspect them, they are independently audited and overseen by the Certification Officer . Third, members have a right to not give contributions to the trade union's political fund, if there is one. Since the early success of the UK Labour Party in promoting working people's welfare through Parliament, both courts and Conservative governments attempted to suppress unions' political voice, particularly compared to funding by employers through control of corporations . Under TULRCA 1992 sections 72, 73 and 82,
10140-457: A safe system of work, a minimum wage and limits on working time, anti-discrimination rights, and trade union rights, but not job security, child care, and employers do not make National Insurance contributions for them. The Supreme Court has held that this category contains quasi-self-employed professionals, such as partners of a law firm, and high-earning plumbers. However, staff who are employed through an agency, will be employees in relation to
10400-414: A series of contracts of service or a contract for services but that the answer would depend on the facts of each individual case. The court then reviewed the evidence as found by the tribunal, including the fact that the work had been done for seven years and for five days a week and concluded that, on the material before it, the tribunal was well entitled to come to the conclusion that there was, by reason of
10660-605: A shortage of workers and consequent price rises, the Ordinance of Labourers 1349 and the Statute of Labourers 1351 suppressed wages to pre-plague levels, banned workers unionising, and created offences for any able-bodied person that did not work. Ultimately this led to the Peasants' Revolt of 1381, which was followed by the Statute of Cambridge 1388 , banning workers moving around the country. All these repressive acts were signs that serfdom
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10920-405: A shortfall of wages in a Tribunal. A worker may not be subjected to any detriment for requesting records or complaining about it. However, because many workers will not be informed about how to do this, or have the resources, a primary enforcement mechanism is through inspections and compliance notices issued by Her Majesty's Revenue and Customs (HMRC). A remedy of up to 80 times the minimum wage
11180-416: A small number of rights for direct participation in workplace and company affairs, particularly pension management. In some enterprises, such as universities, staff can vote for representatives on boards that manage the enterprise. In principle, UK law guarantees trade unions and their members freedom of association . This means people can organise their affairs in the way they choose, a right reflected in
11440-803: A statutory maximum. Every employer must provide a "safe system of work". In the industrial revolution from 1802 the Factories Acts required workplaces to be cleaner, ventilated, with machinery fenced. The Acts restricted child labour and limited the working day. They targeted mines, or textile mills, before the Factories Act 1961 spread to all "factories": where an article is made or changed, or animals are kept and slaughtered. The Employer's Liability (Defective Equipment) Act 1969 made employers automatically liable for equipment with defects supplied by third parties. Because individual employees tend not to litigate, to ensure enforcement, there are inspectors under
11700-415: A strike by BBC staff to stop broadcast of the 1977 FA Cup Final to apartheid South Africa . He reasoned that this was a political dispute, not a "trade dispute", unless the union was requesting "putting a clause in the contract" to not do such work. Strikes against government legislation (rather than an employer), or privatisation, or outsourcing before it happens, have been held unlawful. However, at
11960-400: A system of total freedom of contract . First, an "employee" has all main rights, including job security, retirement, child care, and the right to equal treatment. Most people are employees, although this has not yet been fully defined in the Employment Rights Act 1996 section 230. Instead, Parliament left it to the courts to decide what "employee" with a "contract of service" meant, although
12220-470: A term of the contract, so long as this does not contradict statutory labour rights. In addition, terms can be incorporated by reasonable notice, for instance by referring to a staff handbook in a written employment agreement, or even in a document in a filing cabinet next to the staff handbook. While without express wording they are presumed not binding between the union and employer, a collective agreement may give rise to individual rights. The test applied by
12480-454: A test, there are no conclusive indicia and certainly no pre-conditions. As we understand the position, at one time it was considered that the question of control (whether the employer could dictate where, when and how the work should be done) was thought to be conclusive but such a test is now considered to be only one among many factors. What then is the approach which we should adopt in this case when deciding what inference should be drawn from
12740-425: A third of the globe's surface, with a quarter of its population. Joint Stock Companies , building railways, canals and factories, manufacturing household goods, connecting telegraphs, distributing coal, formed the backbone of commerce, yet with miserable factory life. The Factory Acts dating from 1803 required minimum standards on hours and conditions of working children. Trade unions were suppressed, especially after
13000-467: A toy warehouse assistant was refused a reduction to part-time work because, according to the manager, everyone needed to work full-time to maintain "team spirit". The Employment Appeal Tribunal ruled that because "team spirit" was not one of the legitimate grounds for refusal, Rutty should get compensation, which is set at a maximum of 8 weeks' pay. Finally, the Employment Rights Act 1996 sections 63D-I give employees (and agency workers are expressly included)
13260-506: A trade dispute involves a company group. A worker's written statement of the contract may purport to say that the only "employer" is a subsidiary, although the parent company carries out the employer's function of ultimately setting the contractual terms and conditions. Further, any picketing or protest outside a workplace must be "peaceful" and there must be a picket supervisor. There are a limited number of outright prohibitions on strike action, but in accordance with ILO Convention 87 this
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#173290849789913520-695: A trade dispute" is immune from civil law sanctions. The Old Age Pensions Act 1908 provided pensions for retirees. The Trade Boards Act 1909 created the first minimum wages and the National Insurance Act 1911 levied a fee to insure people got benefits in the event of unemployment. After the brutality of World War I, the Versailles Treaty created the International Labour Organization to draw up common standards between countries, for as it said, "peace can be established only if it
13780-427: A trade dispute". This said, various further hurdles must be jumped for a union to be certain of immunity from employers suing for damages, or an injunction to stop a strike. First, the meaning of a "trade dispute" under TULRCA 1992 section 244 is confined to mean a dispute "between workers and their employer" and must mainly relate to employment terms. In BBC v Hearn Lord Denning MR granted an injunction against
14040-407: A union is "not a body corporate", in every practical sense it is: it can make contracts, commission torts, hold property, sue and be sued. The union's executives and officials carry out actions on its behalf, and their acts are attributed to it by ordinary principles of agency. However, if any union official acts ultra vires , beyond the union's powers, every member has a right to claim a remedy for
14300-598: A union must hold a separate fund for any "political object" (such as advertising, lobbying or donations), members must approve the fund by ballot at least every 10 years, and individual members have a right to opt-out of it (unlike shareholders in companies). Unions must also have political objects in the constitution. In 2010, just 29 from 162 unions had political funds, though 57 per cent of members contributed. This generated £22m. Consolidated statistics on corporate political spending, by contrast, are not available. Fourth, members must be treated fairly if they are disciplined by
14560-419: A union's written request to disclose information, without which collective bargaining could be materially impeded, according to "good industrial relations practice". The Companies Act 2006 section 417-419 also requires disclosure of information in a director's report each financial year on how companies "have regard" to "the interests of the company's employees" and "business relationships with suppliers" down
14820-544: A union, in accordance with judicially developed principles of natural justice . For example, in Roebuck v NUM (Yorkshire Area) No 2 Templeman J held that it was unfair that Arthur Scargill was on the appeal panel for journalists being disciplined for appearing as witnesses against a libel action by Scargill himself. In another example, Esterman v NALGO held that Miss Esterman could not be disciplined for taking up an election counting job outside of her work, especially since
15080-399: A view to agreement on any contract or workplace organisation changes, major economic developments or difficulties. The UK Corporate Governance Code recommends worker involvement in voting for a listed company's board of directors but does not yet follow international standards in protecting the right to vote in law. Collective bargaining , between democratically organised trade unions and
15340-435: A view to reaching an agreement". This is "an obligation to negotiate", similar to a duty to bargain in good faith . To start a procedure, at least 15 employees or 10 per cent of staff (whichever is higher) can request it. Occasionally, there could be a "pre-existing" council, or procedure in writing, covering all employees. If so, if it is not as good as the new method requested, and if the employer wants to keep it that way,
15600-601: A vote takes place the union must have at least 10 per cent membership, and win 50 per cent of the vote, or least 40 per cent of those entitled to vote. If the union wins a majority, the eighth and final step is that if the parties do not reach an agreement the CAC will regulate the collective agreement for the parties and the result will be legally binding. This contrasts to the basic position, under TULRCA 1992 section 179, which presumes that collective agreements are not intended to create legal relations . The long, problematic procedure,
15860-580: A wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service." Of (iii) MacKenna J. proceeded to give some valuable examples, none on all fours with this case. I do not quote what he says of (i) and (ii) except as to mutual obligations: “There must be
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#173290849789916120-460: A wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill.” There must, in my judgment, be an irreducible minimum of obligation on each side to create a contract of service. I doubt if it can be reduced any lower than in the sentences I have just quoted and I have doubted whether even that minimum can be discerned to be present in
16380-636: A week, few could subsist a month, and scarce any a year without employment. In the long run the workman may be as necessary to his master as his master is to him; but the necessity is not so immediate." A Smith , An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book I, ch 8, §12 At the Industrial Revolution 's height, the British Empire organised half the world's production, on
16640-451: A worker may have been employed at a number of companies where he was exposed to asbestos, but his injury cannot with certainty be traced to any one, and some may be insolvent. In Fairchild v Glenhaven Funeral Services Ltd , the House of Lords held that if any employer had materially increased the risk of harm to the worker, they could would be jointly and severally liable and could be sued for
16900-601: A worker who cared for a young epileptic lady had to be on call 24 hours a day, 3 days a week, but could do her own activities, such as going shopping, making meals and cleaning. Her company made an agreement with her that her tasks took 6 hours and 50 minutes a day, which resulted in her £31.40 allowance meeting the minimum wage. Deductions up to £6 per day can be made for accommodation the employer provides, though extra bills, such as for electricity, should not ordinarily be charged. The minimum wage can be enforced individually through an Employment Rights Act 1996 section 13 claim for
17160-430: Is "compatible with effective management", as well as the employer's views and the characteristics of the workers. The CAC has broad discretion, and may only be challenged by an employer under the general principles of natural justice in administrative law . In R (Kwik-Fit (GB) Ltd) v CAC the Court of Appeal found that the CAC's determination that the appropriate bargaining unit was all of Kwik Fit 's workers within
17420-450: Is a continuing mutual obligation on each party to offer wages or work, the home workers were not employees and therefore were not under the protection of unfair dismissal rights. UK labour law United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK have a minimum set of employment rights, from Acts of Parliament, Regulations, common law and equity . This includes
17680-597: Is a simple " defined contribution " scheme: whatever the jobholder contributes, they get out. Although collectively invested, benefits are individualised, meaning the risk of living longer and running out of money grows. To reduce administration costs, a non-departmental trust fund called the National Employment Savings Trust was established as a "public option" competing with private asset managers. Employers set aside an agreed percentage of jobholders' wages, and negotiate how much they will contribute. This
17940-499: Is also the right, under the Social Security Contributions and Benefits Act 1992 , to statutory sick pay. People at work can also sue for compensatory damages whenever they are injured and employers have breached a statutory duty. They can claim for the injury itself, loss of income, and relatives or dependents may recover small sums to reflect distress. Employers are vicariously liable for all agents acting for them in
18200-422: Is another collective agreement in place, employees should give 21 days' notice, no more than 4 weeks in a year, at least 1 week at a time, and the employer can postpone the leave for 6 months if business would be unduly disrupted. Otherwise, employees have a right to suffer no detriment, nor be dismissed, and have the right to their previous jobs back. To redress the imbalance between women and men bearing children,
18460-485: Is available to the worker and HMRC can enforce a penalty of twice the minimum wage per worker per day. Unlike the rules for Value Added Tax Act 1994 , where consumers must see the prices they actually pay after tax, there is currently no requirement for workers to see the final wages they will actually earn after income tax, and National Insurance contributions. Under the Income Tax Act 2007 , as amended each year by
18720-573: Is based on social justice ", and echoed the US Clayton Act 1914 in pronouncing that "labour should not be regarded merely as a commodity or an article of commerce". But the international system remained disjointed as the United States Congress withheld its approval to join the League of Nations . Within the UK the postwar settlement was to make a home fit for heroes. Whitley Councils extended
18980-506: Is clear to us that the decision of the tribunal was not based on the Airfix Footwear case . The decision was based on the answer to the question whether the applicants were in business on their own account. The industrial tribunal considered that there was a similarity of fact in the Airfix case and the present case in that in both cases the relationship had endured for a substantial time. It
19240-544: Is collectivised among all contributors. In principle, the rules for pension trusts differ from ordinary law of trusts as pensions are not gifts and people pay for their benefits through their work. Pensions operating through contracts also engender mutual trust and confidence in the employment relationship. An employer is under a duty to inform their staff about how to make the best of their pension rights. Moreover, workers must be treated equally, on grounds of gender or otherwise, in their pension entitlements. The management of
19500-402: Is entitled to a minimum wage (£11.44 per hour in 2024), 28 statutory minimum days of paid holiday, enrolment in a pension plan, a safe system of work , and the right to equal treatment that also applies to consumers and public service users. An "employee" has all those rights, and also the right to a written contract of employment, time off for pregnancy or child care, reasonable notice before
19760-427: Is explicit protection for disclosures in the public interest, for instance of unlawful activity, under the Employment Rights Act 1996 section 43A to 43K. These " whistleblower " provisions protect 'qualifying disclosures' such as any criminal offence, a breach of legal duty, miscarriage of justice, health and safety violations, environmental damage, or deliberate concealment of wrongs. The disclosures must be made with
20020-498: Is fraud. Until the mid-20th century there was an "unholy trinity" of defences: common employment , volenti non fit injuria , and contributory negligence . These are gone, but a fourth defence taken advantage of by employers is ex turpi causa non oritur actio , that if the employee was engaged in any illegal activity they may not claim compensation for injuries. In Hewison v Meridian Shipping Services Pte Ltd Hewison concealed his epilepsy so that he could work offshore, and so
20280-614: Is fundamental to every democratic society , and a recognised human right in international law . Historically, the UK recognised the right to strike at least since 1906. UK tradition has inspired the International Labour Organization Convention 87 (1948) articles 3 and 10, the case law of the European Court of Human Rights under article 11 , and the EU Charter of Fundamental Rights article 28. However,
20540-610: Is impossible to conclude that there was a contract of service. Young & Woods Ltd v West [1980] IRLR 201 shows to our satisfaction that all the indicia have to be considered, leaving perhaps as fundamental the test whether the applicant was in business on his or her own account. We say that this is perhaps the fundamental test because, although Megaw LJ adopted it in Ferguson's case , he described it as very helpful and Stephenson and Ackner LJJ in West's case found it of assistance. Apart from such
20800-515: Is no longer a lawful ground for it to be kept. All rights are backed by criminal offences and enforceable through complaints to the Information Commissioner. The second main civil liberty in the workplace is the right to freedom of expression , protected in ECHR article 10 . First, freedom of expression includes statements of political opinion, as well as association. In Vogt v Germany it
21060-469: Is no qualifying period for the right to unpaid leave, but the mother must have worked for 26 weeks for the right to paid leave. The mother must also tell the employer 15 weeks before the date of the expected birth, in writing if the employer requests it. Employees may not suffer any professional detriment or dismissal while they are absent, and should be able to return to the same job after 26 weeks, or another suitable job after 52 weeks. If parents adopt, then
21320-488: Is not explicit, standard principles of construction apply. There have been dissenting views, notably in Breen v Amalgamated Engineering Union , over the extent to which principles of natural justice may override a union's express rules. However, the better view appears that construction of a union's rules consistently with statutory principles of democratic accountability do require that express rules are disapplied if they undermine
21580-487: Is not liable for economic loss to workers who are collectively dismissed, a union could be liable to the employer for taking collective action. Economic torts have been said to include conspiracy to injure , inducement of breach of contract , and tortious interference with a contract. However, TULRCA 1992 section 219 contains the classic formula, that collective action by a trade union becomes immune from any liability in tort if done "in contemplation or furtherance of
21840-418: Is not; (2) that the industrial tribunal was entitled to find that there was an obligation on the applicants' part to accept a reasonable amount of work and an obligation on the company's part to provide a reasonable amount of work, and the company had not shown that the industrial tribunal had held that the company had no such obligation. It accepted Mr. Weisfeld's statement of his opinion, but did not adopt it as
22100-413: Is only for workplaces that involve the truly essential functions of the state (for armed forces, police, and prison officers ), and only when impartial arbitration is used as an alternative. Third, under TULRCA 1992 section 226 a union wishing to take collective action for a trade dispute must conduct a ballot. In summary, the union must give 7 days notice to the employer about holding a ballot, state
22360-406: Is particularly important for people who have not created a union and collectively bargained for an occupational pension. Collectively bargained pensions are often better, and historically had " defined benefits ": on retirement, people receive money based either on their final salary , or a career average of earnings for the rest of their lives. Living longer does not become an individual risk, but
22620-592: Is periodically evaluated by actuaries , and shortfalls are made up. The Pensions Regulator is the non-departmental body which is meant to oversee these standards, and compliance with trustee duties, which cannot be excluded. However, in The Pensions Regulator v Lehman Brothers , the Supreme Court concluded that if the Pensions Regulator issued a "Financial Support Direction" to pay up funding, and it
22880-699: Is protected when it is "in contemplation or furtherance of a trade dispute". As well as the law's aim for fair treatment, the Equality Act 2010 requires that people are treated equally, unless there is a good justification, based on their sex, race, sexual orientation, religion or belief and age. To combat social exclusion , employers must positively accommodate the needs of disabled people. Part-time staff, agency workers , and people on fixed-term contracts must be treated equally compared to full-time, direct and permanent staff. To tackle unemployment, all employees are entitled to reasonable notice before dismissal after
23140-414: Is that directors or decision-makers who inform and consult staff on important workplace changes (e.g. redundancies) think harder, and see alternatives with fewer costs for the enterprise, taxpayers , and staff. Information and consultation rights have historically derived from collective bargaining models. The Trade Union and Labour Relations (Consolidation) Act 1992 sections 181-182 require employers on
23400-445: Is that there may be a mutual obligation to provide and perform it. On behalf of the applicants, Mr. Jones accepts that the question whether there is a contract of service or a contract for services is a matter of law to be inferred from given facts. He submits that upon this approach, the true and only inference which can be drawn in the present case is that the applicants were employed under a contract of service. He contends that whilst
23660-518: Is that this was a contract of service and that the appeal must be dismissed. They are impressed by these factors (not expressed in any descending order of importance) when asking themselves the question whether the applicants were in business on their own account: Thus, the lay members, having looked at all these facts and addressed their minds, as did the industrial tribunal, to the Court of Appeal judgment in Young & Woods Ltd v West have answered "No" to
23920-462: Is to ensure people have dignified living standards, whether or not they have the relative bargaining power to get good terms and conditions in their contract. Modern labour law is mostly a creation of the last three decades of the 20th century. However, as a system of regulating the employment relationship, labour law has existed since people worked. In feudal England, after the Black Death with
24180-498: Is true that the tribunal interpreted the decision in the Airfix case as justifying the conclusion that a contract of service may arise on such facts but, even if they were wrong in that view, we have to exercise our own judgment on the facts as found. It was argued for the employers in the Airfix case that they were not obliged to provide work for the applicant nor was she obliged to perform it and that, in such circumstances, no reasonable tribunal acting judicially could find that there
24440-556: The 1875 , UK law has said collective action, including the right to strike , is lawful if it is "in contemplation or furtherance of a trade dispute". Since the 1980s, there have also been a number of requirements for balloting the workforce and warning the employer, suppression of sympathy strikes and picketing . In these respects UK law falls below international labour standards . There are legal rights to information about workplace changes and consultation on redundancies, business restructuring and management generally. Finally, there are
24700-546: The Additional Paternity Leave Regulations 2010 made it possible for the woman to transfer up to 26 weeks of her maternity leave entitlements to her partner. This has not stopped the gender pay gap . In further specific situations, there are a jumble of other rights to leave spread across the Employment Rights Act 1996 sections 55 to 80I. "Emergency leave" is, under the Employment Rights Act 1996 section 57A, available for employees to deal with birth or
24960-404: The Employment Rights Act 1996 section 13 stipulates that employers can only dock employees' wages (e.g. for destroying stock) if the employee has consented to deductions in writing. This, however, does not cover industrial action, so following 18th century common law on part performance of work, employees who refused to 3 out of 37 hours a week in minor workplace disobedience had their pay cut for
25220-586: The Finance Acts , in 2019 the 'personal allowance' with 0% was up to £12,500 in income, a 'basic rate' of 20% tax was paid on £12,500 to £50,000, a higher rate was 40% on income over £50,000, and a top rate of 45% over £150,000. The top rate of income tax has been dramatically cut since 1979, while taxation for the richest people, who receive most money through capital gains , dividends, or corporate profits has been cut even further. People will be classified as liable to pay income tax whether or not they work through
25480-702: The French Revolution of 1789, in the Combination Act 1799 . The Master and Servant Act 1823 criminalised workers for disobedience, strikes were branded as an "aggravated" breach of contract . Despite this, unions grew and through massive pressure won the right to exist and bargain in the Trade Union Act 1871 and the Conspiracy, and Protection of Property Act 1875 . Toward the turn of the 20th century, in Mogul Steamship Co Ltd v McGregor, Gow & Co ,
25740-445: The GDPR personal data can only be processed by consent or law, fairly, transparently, with a legitimate purpose, kept secure, and no longer than needed. The law distinguishes between ordinary data, and 'sensitive' personal data, such as political opinions, union membership, or biometric data. There is a right to have any inaccurate data rectified, and erased if consent is withdrawn and there
26000-530: The Health and Safety at Work etc. Act 1974 , enforced by the Health and Safety Executive . The HSE can delegate enforcement to local authorities. Inspectors have the power to investigate and require changes to workplace systems. HSWA 1974 section 2 also foresees that employees will set up their own workplace committees, elected by the employees and with the power to codetermine health and safety matters with management. Health and safety regulations remain in line with
26260-455: The Information and Consultation of Employees Regulations 2004 , require undertakings with 50 or more employees to inform and consult on probable developments in the enterprise, changes to job structures, and contract changes - especially redundancies . Employees must voluntarily initiate an "information and consultation procedure". If they do, but employers cannot find a negotiated agreement,
26520-469: The International Labour Organization for undermining a union's effectiveness, in breach of core labour standards. The right of workers to collectively bargain with employers for a " fair day's wage for a fair day's work " is regarded as a fundamental right in common law , by the European Convention on Human Rights article 11 , and in international law . Historically the UK had, however, left
26780-504: The Lord Chancellor Derry Irvine , reconfigured "mutuality of obligation" to mean an expressed continuing duty to provide work. Mr Blair makes four submissions. First, that the question whether the applicants worked under a contract of service or for services is a question of law and not of fact. He relies upon the judgment of Stephenson LJ in Young & Woods Ltd v West [1980] IRLR 201. Secondly, Mr Blair submits that
27040-462: The M25 London ring road . The union's recommendation is the starting point and the CAC is entitled to prefer this over an employer's alternative, especially since the employer will often attempt to define a larger "unit" so as to limit the likelihood of union members holding greater majority support. Fourth, once the bargaining unit is defined, the CAC may be satisfied that there is majority support for
27300-574: The Peasants' Revolt of 1381 , and the Indian Independence Movement up to 1947), prevented military coups against democratic governments (e.g. the general strike in Germany against the Kapp Putsch in 1920), and overthrew dictatorships (e.g. in the 2008 Egyptian general strike ). Anti-democratic regimes cannot tolerate social organisation they do not control, which is why the right to strike
27560-629: The Royal Horse Artillery , and was employed in the planning of air defence at the War Office , becoming a GSO1 and a lieutenant-colonel . He was appointed an OBE (Military Division) in 1945. Returning to the bar, Browne acquired a large civil practice, mainly in planning law and parliamentary work. He became a Queen's Counsel in 1960, and was Deputy Chairman of the Essex County Quarter Sessions from 1963 to 1965. He also edited
27820-521: The Trade Union and Labour Relations (Consolidation) Act 1992 Schedule A1 contains a statutory procedure for workers to become recognised for collective bargaining. To use this procedure, first, a trade union must be certified as independent and the workplace must have a minimum of 21 workers. Second, there must not already be a recognised trade union. This caused particular problems in R (National Union of Journalists) v Central Arbitration Committee as
28080-551: The Trade Union and Labour Relations (Consolidation) Act 1992 sections 137-143 make it unlawful for employers, including agencies, to refuse anyone employment on grounds of union membership. The courts will interpret the legislation purposively to protect union activities, with the same strictness as other anti-discrimination laws. Second, TULRCA 1992 sections 146-166 state that workers may not be subject to any detriment or dismissal. For example, in Fitzpatrick v British Railways Board
28340-627: The UK's constitution and are protected in multiple statutes. Under the Human Rights Act 1998 , section 3, domestic law should be interpreted so far as possible to be compatible with the European Convention on Human Rights . If a compatible interpretation would bend an Act's words too much, section 4 requires courts to issue a declaration of incompatibility, for Parliament to amend the law. Under section 6, courts are public bodies, themselves bound to act compatibly with human rights. The first main right affecting
28600-589: The Working Time Directive give every worker the right to paid holidays, breaks and the right to a weekend . Following international law, every worker must have at least 28 days, or four full weeks in paid holidays each year (including public holidays ). There is no qualifying period for this, or any other working time right, because the law seeks to ensure both a balance between work and life, and that people have enough rest and leisure to promote better physical and psychological health and safety . Because
28860-678: The supply chain . General consultation rights existed in the UK with collective bargaining since the Whitley Councils from 1918. A general consultation right is now codified in the Charter of Fundamental Rights of the European Union , article 27. The Court of Justice held this was not directly binding, but specific rules apply in four main contexts: in general work councils , transnational work councils , for collective redundancies, transfers of undertakings , and health and safety. First,
29120-513: The "course of employment" whenever their actions have a "close connection" to the job, and even if it breaks an employer's rules. An employer only has a defence if an employee, on a "frolic of his own", was not placed by an employer in a position to cause harm. Under the Employers' Liability (Compulsory Insurance) Act 1969 , employers must take out insurance for all injury costs. Insurance companies may not sue their employee to recover costs unless there
29380-488: The "reasonable expectations" of members. In addition, "best practice" standards will be used to interpret union rules. In AB v CD , where the union's rules were silent on what would happen when an election was tied, the court referred to the Electoral Reform Society 's guidance. Beyond union governance through the vote and elections, members have five main statutory rights. First, although statute asserts that
29640-485: The 48-hour maximum by individually signing an opt out form. Theoretically and legally, a worker may always change his or her mind after having opted out, and has a right to sue the employer for suffering any detriment if they so choose. "On call" time where people must be ready to work is working time. The European Court of Justice 's decision in Landeshauptstadt Kiel v Jaegar that junior doctors' on call time
29900-427: The 5,000 trousers among the 11 home workers. There emerges from the evidence a picture of the applicants' doing the same work for the same rate as the employees in the factory but in their own homes — and in their own time — for the convenience of the workers and the company. If that is a reasonably possible picture, the industrial tribunal's decision can only be upset if Airfix Footwear Ltd. v. Cope [1978] I.C.R. 1210
30160-449: The Airfix case that they were not obliged to provide work for the applicant nor was she obliged to perform it and that, in such circumstances, no reasonable tribunal acting judicially could find that there was a contract of service. The appeal tribunal acknowledged that the absence of mutual obligations, where work is offered and performed sporadically, might lead to the conclusion that there was
30420-537: The Board dismissed of a lady who had been a member of a Trotskyist group (which promoted international socialism ). The Board justified this on the ground that she had not told the employer about having previously worked for the Ford Motor Company , and so for 'untruthfulness and lack of trust'. Woolf LJ held that this was not the true reason - Trotskyism was the issue. The dismissal was unlawful under section 152. Given
30680-417: The Court of Appeal has repeatedly affirmed that "to cease work except for higher wages, and a strike in consequence, was lawful at common law", that "right of workmen to strike is an essential element in the principle of collective bargaining ", "that workmen have a right to strike", and that this is "a fundamental human right". This view would accord with international law, and see the right to stop work in
30940-497: The Court of Appeal held that a recognised union which lacked any significant support could block the bargaining claim of a union with support. Third, the union must identify an appropriate "bargaining unit" for a collective agreement, which a government body named the Central Arbitration Committee (CAC) can verify and approve. On the union's proposal, the CAC must take into account whether the proposed bargaining unit
31200-463: The Court of Appeal is of interest, because a future UK Prime Minister was representing the employer. A key plank of the New Labour election pledge in 1997 was to sustain labour market flexibility , which fits in with the approach of his submissions here. In essence, he was arguing that because the interpretation of a contract is one of law, and because it can only be a contract "of employment" if there
31460-512: The Court of Appeal since emphasised in British Airways Plc v Unite the Union (No 2) and RMT v Serco Ltd that the rules are to be interpreted consistently with the purpose of reconciling the equally legitimate, but conflicting interests of employers and unions. No employee can be dismissed for taking part in a strike for a period of 12 weeks, so long as the strike is officially endorsed by
31720-571: The EU's Social Chapter, which has served as the source for most reform in UK law since that time. Domestic led reform was minimal. The National Minimum Wage Act 1998 established a country-wide minimum wage, but did not attempt to reinvigorate the Wage Board system. The Employment Relations Act 1999 introduced a 60-page procedure requiring employers to compulsorily recognise and bargain with a union holding support among workers, though union membership remained at
31980-632: The European-wide harmonised requirements of the Health and Safety Directive . The most important protection for people's health has been the National Health Service (NHS), founded by the National Health Service Act 1946 . The National Health Service Act 2006 entitles everyone to health care in the UK, and is funded through the tax system. If people are injured at work, they may be treated regardless of their means to pay. There
32240-412: The House of Lords emphasised that businesses should be free to organise into trade associations in the same way that employees organised into unions. However, in the notorious judgment of Taff Vale Railway Co v Amalgamated Society of Railway Servants , the House of Lords changed its mind and made unions liable in economic tort for the costs of industrial action . Although a combination of employers in
32500-487: The ILO Right to Organise and Collective Bargaining Convention, 1949 and the European Convention on Human Rights , article 11. Under the ECHR article 11 , freedom of association can only be restricted by law as is " necessary in a democratic society ". Traditional common law and equity was superficially similar, since unions form through contract , and the association's property is held on trust for its members according to
32760-479: The Ready Mixed Concrete case were not cited to the court. Young & Woods Ltd v West was, of course, decided subsequently. It seems to us upon the authorities to which we have been referred and in the absence of an argument to the contrary that we should follow the opinion of Stephenson L.J. in West's case that the conclusion is one of law and not of fact. We have to determine what was the true nature of
33020-621: The Trade Boards Act 1909 system to Joint Industrial Councils that created sector-wide fair wage agreements, while the Ministry of Labour actively organised the growth of trade unions. This was based on a theory of collective bargaining, agreement or action, advocated by Sidney Webb and Beatrice Webb in Industrial Democracy to remedy the inequality of bargaining power of workers. Without legal force behind collective agreements,
33280-575: The UK Supreme Court, was merely that employees only needed to exchange work for a wage: this was the "irreducible core" of an employment contract. But a rival view stated that the employment relationship had to be one where there was an ongoing obligation to offer and accept work. This led to cases where employers, who hired people on a casual basis, low wages, and with little bargaining power, argued they owed no duties to their staff, because they had neither side had assumed any such obligation. However,
33540-652: The UK back into compliance with international law , the National Minimum Wage Act 1998 was introduced. Every worker" who personally performs work, but not for a client or customer, However, it was held that a pupil barrister did not count as a worker. The minimum wage rate is revised annually after guidance from the Low Pay Commission , but since 2010 has been cut for under-25-year-olds and young people doing apprenticeships. The National Minimum Wage Regulations 2015 state that for people who are not paid by
33800-602: The agency. Though not entitled to employee rights, these workers may form trade unions and take collective action under UK, EU and international law, to protect their interests. Once a person's work contract is categorised, the courts have specific rules to decide, beyond the statutory minimum charter of rights, what are its terms and conditions. Just like ordinary contract law there are rules on incorporation, implied terms and unjust factors. However, in Gisda Cyf v Barratt , Lord Kerr emphasised that if it affects statutory rights,
34060-441: The agreement which is within exclusive judicial competence to define. The second, and older, hallmark of the employment contract is that employees are bound to follow their employers' instructions while at work, so long as that does not contravene statute or agreed terms. Employments relation give the employer discretion in limited fields. This used to be called the 'master–servant' relationship. The employer has some ability to vary
34320-438: The appeal tribunal that that was the correct interpretation of paragraph 8 and the appeal tribunal went on to hold on the basis of that concession that the paragraph so interpreted involved no error in law. But Mr. Jones for the applicants has rightly withdrawn that concession before us, in part at least, and has submitted (1) that an obligation to accept work is a prerequisite of a contract of service but an obligation to provide it
34580-407: The applicants were in business on their own account), to state what factors led them to that conclusion. We entirely agree with Mr. Blair that it would have been much more helpful if this had been done but it is, we think, reasonably clear what facts were found. Since the conclusion is one of law upon which we have to exercise our own independent judgment on the given facts, we think that the failure of
34840-399: The applicants with work and that the applicants were not obliged to do it. If the decision of the industrial tribunal is to be understood in the sense apparently given it by the appeal tribunal, there was a misdirection in law, for there could have been no contract of service, and perhaps no contract at all. The position of the applicants would have been that of the casual "regulars" as found by
35100-476: The applicants. In refusing to interfere with that view of these two contracts I follow Slynn J. In Airfix Footwear Ltd. v. Cope [1978] I.C.R. 1210 in refusing to say anything about the general position of outworkers; and I do not attempt to determine what particulars of the contracts the company would have to give to comply with section 1 of the Act of 1978, or whether if they were reduced to writing their nature would be
35360-400: The arrangement between the parties and this seems to us to be a conclusion of law. It is now convenient to consider whether the industrial tribunal in fact found that the employers had no obligation to provide work or the applicants to perform it, which is the basis of Mr. Blair's second and main contention. Mr. Jones submitted that it is not wholly clear what the tribunal found. He referred to
35620-441: The association's rules. However, before Parliament became democratic, unions were suppressed for allegedly being in " restraint of trade " and their actions (particularly strikes to improve conditions at work) could be regarded as criminal conspiracy . Nineteenth century reformers, who recognised that unions were democratic, gradually succeeded in guaranteeing unions' freedom of association. The Trade Union Act 1871 aimed to keep
35880-466: The breach. For example, in Edwards v Halliwell a decision of the executive committee of the National Union of Vehicle Builders to increase membership fees was restrained, because the constitution required a two-thirds vote of members first. Second, TULRCA 1992 section 28 requires unions to keep accounts, giving a "true and fair" view of its financial affairs. Records are kept for six years, members have
36140-575: The business of the party for whom the work was being done." Therefore they find it impossible to reverse the industrial tribunal's decision and they reject the appeal. In the minority opinion this was not a contract of service. A prime fact is that neither the employers nor the applicants were respectively under and obligation to provide or to perform work. Each was free and in particular the applicants could at all times elect whether or not to work. Thus, Mrs. Taverna exercised her right by taking lengthy periods when she did no work at all as did Mrs. Gardiner to
36400-529: The categories of employees being balloted, give a total number, all "as accurate as is reasonably practicable in the light of the information". Since the Trade Union Act 2016 , there is an additional requirement that a ballot has a 50% turnout for a strike to be supported, and a total of 40% of voters supporting a strike (i.e. an 80% turnout if the vote is evenly split) in "important public services" that include health services, schools, fire, transport, nuclear and border security. A scrutineer must be able to oversee
36660-432: The central submission made on behalf of the employers. In submitting to us that mutual obligations are a crucial pre-requisite of a contract of service, Mr Blair contends that the reason for such a pre-condition is that a contract of service is a continuing relationship between employer and employee. If the performance of work only arises from time to time it is inconsistent with the continuing obligations which are implicit in
36920-452: The circumstances. The absence of such factors ought not to be decisive. A contrary view might lead to the conclusion that all semi-skilled workers working at home in their own time and when they chose are employed under a contract of service. The following comments are made concerning some of the factors which have influenced the majority opinion: In the result, although there are factors which can validly be taken into account (for example,
37180-412: The company as a front for international crime, or do not exercise discretion to award a bonus capriciously. There has been disagreement among judges about the extent to which the core implied term of mutual trust and confidence can be 'contracted out of', with the House of Lords having held that the parties may when they are "free" to do so, while others approach the question as a matter of construction of
37440-554: The compulsory leave, there is a right to 6 weeks' leave paid at 90% of ordinary earnings. Third, there is a right to 33 weeks' leave at the statutory rate, or 90% of ordinary earnings if this is lower, which was £138.18 per week in 2014. The government reimburses employers for the costs according to the employer's size and national insurance contributions. Fourth, the mother may take additional, but unpaid maternity leave for another 13 weeks. A contract of employment can always be, and if collectively bargained usually is, more generous. There
37700-408: The conclusion expressed in paragraph 11 of the decision, submitting that the industrial tribunal have failed to relate their conclusion that the employees were not in business on their own account, to the facts: the tribunal have simply stated the conclusion but have not indicated what aspects of the facts led them to the conclusion. Fourthly, Mr. Blair contends that the industrial tribunal misunderstood
37960-517: The conduct, the vote must be given to all workers who could strike, the vote must be secret and by post, allowing for 'small accidental failures' which are 'unlikely to affect the result of the ballot'. The union must inform the employer of the result "as soon as reasonably practicable", call action within four weeks, and tell the employer of the people taking part. The rules are poorly drafted, and this has generated litigation where some courts allowed injunctions on ostensible technical glitches. However,
38220-402: The contract of employment, is occupational pensions. Traditionally, these came from a collective agreement , or from an employer setting one up. The Pensions Act 2008 gives every " jobholder " (defined as a worker, age 16 to 75, with wages between £5,035 and £33,540 ) the right to be automatically enrolled by the employer in an occupational pension, unless the jobholder chooses to opt out. This
38480-492: The court will find that the applicant has a " contract of employment " and is therefore an employee. This case is also notable in that it was one of former UK Prime Minister Tony Blair 's last cases conducted as a barrister . He acted for the employers. He appeared in the Employment Appeal Tribunal on behalf of the employer but his arguments to deny the workers' unfair dismissal rights were emphatically rejected in
38740-470: The courts away from unions' internal affairs, while the Trade Disputes Act 1906 finally confirmed the right of unions to take collective action, free from liability in tort , if it was "in contemplation or furtherance of a trade dispute". The basic philosophy of "legal abstention" from union organisation lasted until 1971 when the Conservative government attempted comprehensive regulation. This intervention
39000-523: The courts had held that justices had jurisdiction to convict and punish workmen for breaches of contracts to serve masters under the statute 4 Geo. 4, c. 34. For that purpose the court had to decide that there was mutuality of obligation, an obligation on the master to provide work as well as wages, complementing an obligation on the servant to perform the work: R v Welch (1853) 2 E&B 357; Bailey Case (1854) 3 E. & B. 607 and Whittle v Frankland (1862) 2 B&S 49. But later cases have shown that
39260-442: The courts is to ask loosely whether its terms are 'apt' for incorporation, and not statements of 'policy' or 'aspiration'. Where the collective agreement's words are clear, a "last in, first out" rule was held in one case to potentially qualify, but in another case a clause purporting to censure compulsory redundancies was held to be binding 'in honour' only. As well as statutory rights, expressly agreed terms, and incorporated terms,
39520-528: The courts' tolerance for such practices are evident if they touch procedures for accessing justice, or potentially if they would contravene the duty of mutual trust and confidence . Since 1998, the United Kingdom has fixed a national minimum wage, but collective bargaining is the main mechanism to achieve " a fair day's wage for a fair day's work ". The Truck Acts were the earliest wage regulations, requiring workmen to be paid in money, and not kind. Today,
39780-400: The current maximum is 48 hours, averaged over 17 weeks, but it does not apply to the self-employed or people who can set their own hours of work. In Pfeiffer v Deutsches Rotes Kreuz the Court of Justice said the rules aim to protect workers who possess less bargaining power and autonomy over the way they do their jobs. Nevertheless, the UK government negotiated to let workers "opt out" of
40040-487: The decision on its facts. It has also been held in Chandler v Cape plc that even though a subsidiary company is the direct employer of a worker, a parent company will owe a duty of care. Thus shareholders may not be able to hide behind the corporate veil to escape their obligations for the health and safety of the workforce. Civil liberties at work, particularly the right to privacy and freedom of expression , are part of
40300-510: The decision) found that if Mrs. Gardiner wanted less work she would say so. Moreover (see paragraphs 10 and 11 of the tribunal's findings) Mr. Weisfeld told the applicants that he was not deducting tax or national insurance. On the finding, this was a part of the arrangement. It is quite true that the applicants took no financial risk and that they had no responsibility for investment and management, but they were engaged in semi-skilled and simple work and such considerations seem to be inappropriate in
40560-520: The decision. The question arose in Young & Woods Ltd v West [1980] IRLR 201. The facts in that case are not material. Stephenson LJ at p. 205, referred to the opinion of Megaw LJ in Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213, that the conclusion was one of law and to the opinion of Browne LJ in the same case that it was not. He continued, at p. 205: "but I must respectfully express my dissent from what Browne LJ said at
40820-405: The duration of the relationship, a continuing contract of employment. We do not read the judgment as establishing the proposition that before a contract of service can exist there must be the mutual obligations for which Mr. Blair contends.” Mr. Blair had contended for the company that there must indeed be mutual obligations before a contract of service can exist; that is, a continuing obligation on
41080-505: The economist Adam Smith observed, change a worker's factual dependency on employers and the threat of poverty from unemployment. "It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can combine much more easily; and the law, besides, authorises, or at least does not prohibit their combinations, while it prohibits those of
41340-468: The employee having an affair, again without any warning. On the other hand, in Kopke v Germany , the Court held that video surveillance of employees was lawful, after an employer had found money was going missing from the till, in pursuit of the legitimate aim of protecting property rights: implicitly, general video surveillance without any reasonable suspicion of a wrongful act would be a violation. Third, under
41600-426: The employer argued it was barred because in commercial contract cases, one is bound by a notice as soon as it arrives in business hours. The Supreme Court held that Ms Barratt could claim: she was only bound by the notice when she actually read it. The purpose of employment law to protect the employee, and so the rules must be construed to uphold employees' rights. Everything an employee is promised or agrees to becomes
41860-574: The employer must preserve a minimum content of privacy, whatever it tells an employee. In Barbulescu v Romania the European Court of Human Rights held that a sales engineer had a 'reasonable expectation of privacy' against personal messages to his brother and fiancé being read, even though he was told not to use a workplace Yahoo messenger for personal reasons, because he was not specifically told his messages would be checked. Even if he was, "an employer's instructions cannot reduce private social life in
42120-414: The employer to provide work and pay and a continuing obligation on the employee to do the work provided. But he also submitted, at p. 323F, that a true analysis of Airfix Footwear Ltd v Cope [1978] ICR 1210 showed that “where the same quantity of work is accepted and performed over a long period, the proper inference is that there may be a mutual obligation to provide and perform it”; that crucial prerequisite
42380-467: The employer's claim, held the pre-existing procedure was not good enough to force a ballot, because it did not explain how the views of staff would be sought. Employer currently face penalties up to £75,000 for failure to comply with the rules, though it is far from clear this is sufficient to ensure an "effective remedy" under EU law . Patrick Browne (judge) Patrick Browne was born in Cambridge ,
42640-409: The employer's needs, they were paid according to the quantity of trouser flaps they made and they were not formally obliged to accept work. There was a dispute about an entitlement to holiday pay, and when the employer refused to give them the entitlement, they claimed they had been unfairly and constructively dismissed . So the preliminary question on appeal was whether the ladies were "employees" under
42900-425: The employment relation contains standardised implied terms, on top of the individualised implied terms that courts always construe to reflect the reasonable expectations of the parties. First, the courts have long held that employees are owed additional and beneficial obligations, such as a safe system of work , and payment of wages even when the employer has no work to offer. The House of Lords held employers have
43160-424: The enterprise's management, has been seen as a "single channel" for individual workers to counteract the employer's abuse of power when it dismisses staff or fix the terms of work. Collective agreements are ultimately backed up by a trade union 's right to strike : a fundamental requirement of democratic society in international law . Under the Trade Union and Labour Relations (Consolidation) Act 1992 strike action
43420-430: The essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action , with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests.... employees should be free to instruct or permit
43680-420: The evidence of these obligations is tenuous, so tenuous that the industrial tribunal's decision comes dangerously near the ill-defined boundary which separates the grey area of possible reasonable decisions from the jurisdiction of an appeal court to declare the decision wrong and to put it right. According to the chairman's note Mrs. Taverna said: “I worked whenever needed” and that was understood in paragraph 3 of
43940-402: The executive introduced a rule that candidates had to have the executive's "confidence". Smith J held the union had no express rule stating the executive could do this, nor could any be construed consistently with the democratic nature of the union's constitution. The executive's "new rule" was also contrary to TULRCA 1992 section 47, which prohibits unfair exclusions of candidates. Where statute
44200-436: The factory, ready to do such work as the employers might order them to do. There was no undertaking to do a specific number of hours' work. There was, briefly stated, no obligation upon the applicants to provide themselves to serve. They were free to do the work as and when they liked, they could take time off and they were not obliged to complete the work in any specified period. The industrial tribunal (see paragraphs 6 and 11 of
44460-532: The facts and the true legal relationship created between the parties is." Ackner LJ and Sir David Cairns did not express an opinion on the point. But a similar view to that of Stephenson LJ was stated by MacKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 512, 513. The contrary conclusion appears to have been expressed in Airfix Footwear Ltd v Cope [1978] ICR 1210, but Ferguson's case and
44720-417: The facts as found by the industrial tribunal, particularly in paragraph 8 of its decision, and what the appeal tribunal said about it and counsel's interpretation of it. Tudor Evans J. said [1983] I.C.R. 319 , 325: "At the end of the argument, we asked counsel for further submission as to whether, in paragraph 8, the tribunal clearly refer to the lack of mutual obligation or whether the findings were that there
44980-509: The facts as found? We consider that we should adopt the test whether the applicants were in business on their own account and that, in doing so, we should consider what pointers there may be which indicate one direction rather than the other. That was the approach of Stephenson LJ in West's case [1980] IRLR 201, 208. It is at this stage that there is a divergence of view between the members of this appeal tribunal. The majority opinion (the lay members)
45240-560: The first statutes prohibiting discrimination based on gender and race emerged in the 1960s, after the Civil Rights Act was passed in the United States. Discrimination in employment (as in consumer or public service access) was formally prohibited on grounds of race in 1965, gender in 1975, disability in 1995, sexual orientation and religion in 2003 and age in 2006. A complicated and inconsistent jamboree of Acts and statutory instruments
45500-731: The full 37. From the Trade Boards Act 1909 , the UK had set minimum wages according to the specific needs of different sectors of work. This eroded from 1986, and then repealed in 1993. One wages council that survived was the Agricultural Wages Board , established under the Agricultural Wages Act 1948 . It was abolished in England in October 2013, though boards still operate for Scotland , Northern Ireland , and Wales. To bring
45760-509: The full sum, leaving it up to them to seek contribution from others and thus the risk of other businesses' insolvency. For a brief period, in Barker v Corus the House of Lords then decided that employers would only be liable on a proportionate basis , thus throwing the risk of employers' insolvency back onto workers. Immediately Parliament passed the Compensation Act 2006 section 3 to reverse
46020-554: The gender pay gap as women take more time out of their careers than men. Going beyond the minimum in the Pregnant Workers Directive , the Employment Rights Act 1996 section 71 to 73 and the Maternity and Parental Leave etc. Regulations 1999 guarantee maternity leave for 52 weeks in total, but in four steps, paid and unpaid. First, women must take two weeks compulsory leave at the time of child birth. Second, and covering
46280-507: The government can explicitly put people into the "employee" category. The classical common law test was that an employee was subject to the employer's 'control'. But in the 20th century, more people worked outside factories where they had greater autonomy in performing their jobs. New tests were used, such as whether an employee was "integrated" into the workplace, or wore the "badge" of the organisation. Most importantly, because employers paid National Insurance contributions for their employees,
46540-445: The hour, total pay is divided by the hours actually worked over an average "pay reference period" of one month. Workers who are "on call" have to be paid when they are on call. But if a worker is given sleeping facilities and is not awake, the minimum wage need not be paid. However, an employer may agree with a worker what the hours worked actually are, if hours are ordinarily unmeasured. In Walton v Independent Living Organisation Ltd
46800-440: The industrial tribunal found as a fact that the employers were not obliged to supply the applicants with work and that the employees were not obliged to do it. Assuming that the tribunal have so found, Mr. Blair contends that where there is a lack of such mutual obligations, as a matter of law there cannot be a contract of service: mutual obligations are said to be a vital pre-requisite of such a contract. Thirdly, Mr. Blair criticises
47060-415: The industrial tribunal in O'Kelly v Trusthouse Forte Plc [1983] I.C.R. 728 , 743, namely that they had the right to decide whether or not to accept work, and the company had no obligation to provide any work. Paragraph 8 of the industrial tribunal's decision in the instant case can be read as accepting that position, or a relationship between the company and the applicants which was even more nebulous, if
47320-460: The industrial tribunal was accepting Mr. Weisfeld's opinion of their obligations. They were non-existent; there was no mutuality. And if there was no contractual obligation, either on the company to offer work or on the applicants to do work, there was no contract of service, as I think all the judges in O'Kelly v Trusthouse Forte Plc . held: Sir John Donaldson M.R. at pp. 762–763, Fox L.J. at p. 759 and Ackner L.J. at pp. 753–754. But having looked at
47580-420: The industrial tribunal's decision I conclude that it did not involve a complete rejection of mutual obligations but must be taken to have followed Airfix Footwear Ltd v Cope [1978] I.C.R. 1210 in finding that there was an "overall" or "umbrella" contract obliging the company to continue to provide and pay for work and the applicants to continue to accept and perform the work provided. Considering paragraph 11 of
47840-492: The industrial tribunal's decision and its reference to Airfix Footwear Ltd v Cope , I do not feel driven to hold that the industrial tribunal was making the error made by the appeal tribunal of deciding that no such mutual obligations were necessary and the Market Investigations Ltd v Minister of Social Security test provided a contract of service when there were no such obligations. I know that counsel agreed with
48100-422: The industrial tribunal's decision as meaning whenever needed by the company. She refused work when she could not cope with any more, but she let the company know in advance when she was taking a holiday; and Mr. Amos, the company's van driver, agreed that she very rarely refused work and gave good warnings when she did not want it. Both Mrs. Taverna and Mrs. Gardiner submitted weekly “time sheets” regularly to be paid
48360-598: The industrial tribunal's reasons that the employers were not obliged to provide nor the applicants to perform work. Mr Blair lays considerable emphasis upon the observations of Kilner Brown J delivering the judgment in Mailway (Southern) Ltd v Willsher [1978] ICR 511, 513–514: "We have had occasion recently to examine the meaning of 'employment' as contemplated by the Employment Protection Act 1975 in Bullock v Merseyside County Council [1978] ICR 419. Our decision
48620-411: The judgment. The employers also lost in the Court of Appeal. The applicants (Mrs Taverna and Mrs Gardiner) sewed trouser flaps part-time in the factory of Nethermere Ltd. At different times they became pregnant and had an arrangement to work from home. Each worked 5 to 7 hours a day, and for all but 8 or 12 weeks a year. They used sewing machines provided by Nethermere Ltd. Their hours varied according to
48880-428: The ladies. The employer appealed again. The judge, Tudor Evans J held that the claimants were entitled to holiday pay. He rejected "mutuality of obligation" as a criterion. However, in the Court of Appeal, "mutuality of obligation" was accepted as a precondition to a contract, but interpreted in a different way. For the later history, Carmichael v National Power plc [1999] AC 1226, Tony Blair's old pupil master, now
49140-406: The last sentence in paragraph 8 of the decision: "they could take time off as they liked and we accept that evidence." It is said that, looking at the whole of paragraph 8, the tribunal was accepting only that the applicants could take time off as they liked. It is true that grammatically the finding appears to relate to the freedom to take time off but we think that the clear intention of the tribunal
49400-548: The law remained in a state of collective laissez faire , encouraging voluntarism for agreement and dispute settlement between industrial partners. The 1920s and 1930s were economically volatile. In 1926 a General Strike against coal miners' pay cuts paralysed the country, at though it was broken, the Labour Party formed its first government in Parliament in 1929. The onset of the Great Depression , and then war, meant little
49660-440: The leading case, Autoclenz Ltd v Belcher decided by a unanimous Supreme Court in 2011, adopted the view that mutuality of obligation is the consideration of work for a wage. Lord Clarke held that an exchange of work for a wage was essential, but that employment contracts could not be treated like commercial agreements. As he put it, the relative bargaining power of the parties must be taken into account in deciding whether
49920-437: The least, any dispute over the terms or conditions on which workers do their jobs will allow protection. Second, TULRCA 1992 section 224 prevents collective action against someone who is "not the employer party to the dispute". "Secondary action" used to be lawful, from the Trade Union Act 1871 until 1927, and again from 1946 till 1980, but today it is not. This makes the definition of "employer" relevant, particularly where
50180-448: The main way that workers organise their voices. Unions aim to improve their members' lives at work. Unions are founded on contract , but members must have the right to elect the executive, not be excluded without good reason, and not be discriminated against by employers. Unions' main functions are organising and representing a workforce through statutory participation channels, collective bargaining , providing mutual assistance, and being
50440-400: The master and servant relationship. Mr. Blair accepted that there is some doubt as to the extent of an employer's obligation, whether it is to provide work or to pay wages, but he contends that the employer must do one or the other and his obligation is continuous. On the other hand, employees have the duty to be ready and willing to work and this duty is inimical to the finding in paragraph 8 of
50700-473: The normal rule is that a contract of employment does not oblige the master to provide the servant with work in addition to wages: Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647, 650, per Asquith J. An obligation to provide work was not implied by this court in a salesman's contract: Turner v Sawdon & Co [1901] 2 KB 653; it was in a pieceworker's contract: Devonald v Rosser & Sons [1906] 2 KB 728. The obligation required of an employee
50960-482: The opposite conclusion is contrary to authority and wrong. We shall first consider Mr. Blair's submission that the status of the contract is a matter of law and not of fact. If it be a question of fact our powers on appeal are restricted. The employers would only be able to succeed if it were shown either that there was no evidence to support the findings of fact or if the decision was perverse in that no reasonable tribunal, properly directing itself in law could have reached
51220-406: The part of the industrial tribunal and reverse its decision. It cannot say that two views are possible of the true construction of this particular agreement on the facts which the industrial tribunal has found, and we cannot say that no reasonable tribunal could have come to the interpretation which the industrial tribunal has put upon the facts. It must make up its mind what the true interpretation of
51480-466: The power of the union to restrain her was not clearly in its own rules. Fifth, members cannot be expelled from the union without a fair reason, set out in the statutory grounds under TULRCA 1992 section 174. This could include an expulsion under the Bridlington Principles , an agreement among unions to maintain solidarity and not attempt to "poach" each other's members. However, the legislation
51740-482: The practical realities' and the fact that a court should not end the strike in the employer's favour. While rights to take collective action, including strikes, are fundamental to democratic and civilised society, the UK has introduced a growing menu of collective rights to have a "voice at work" without a need for protest . "Information and consultation" are usually seen as precursors to actual participation rights, through binding votes at work. The economic benefit
52000-750: The procedure for making collective agreements, and their content, largely untouched by law. This began to change from 1971 , though by contrast to other countries in the Commonwealth , Europe , or the United States the UK remains comparatively "voluntarist". In principle, it is always possible for an employer and a trade union to come voluntarily to any collective agreement. Employers and unions would usually aim to develop an annually updated wage scale for workers, fair and flexible working time , holidays and breaks, transparent and just procedures for hiring or dismissals , fair and jointly administered pensions , and
52260-415: The provision of equipment), the inference which should be drawn is that this was not a contract of service. The applicants were in business on their own account. However, for the reasons given this appeal must fail. In the Court of Appeal Stephenson LJ in the majority found, first, that whether a contract created a contract of service (and therefore a contract of employment) rather than a contract for services
52520-480: The purpose is for workers to have the genuine freedom to rest, employers may not give a worker "rolled up holiday pay", for instance an additional 12.5% in a wage bill, in lieu of taking actual holidays. However, if the worker has not used his or her holidays before the job terminates, the employer must give an additional payment for the unused holiday entitlement. People working at night may only work 8 hours in any 24-hour period on average, or simply 8 hours at most if
52780-403: The question: "Were the applicants in business on their own account?" The lay members have also posed themselves the question which Bristow J. called the ultimate one in Withers v. Flackwell Heath Football Supporters Club [1981] IRLR 307, 308: "Is he on his own business rather than the business of the party for whom the work is being done?" To this the lay members reply: "The applicants were upon
53040-412: The ratio of the decision in Airfix Footwear Ltd v Cope [1978] ICR 1210. Analysis of the judgment shows that the case did not decide that work performed consistently over a long period of time with an absence of mutual obligations could constitute a contract of service: a true analysis of the case shows that where the same quantity of work is accepted and performed over a long period, the proper inference
53300-412: The right to a minimum wage of £11.44 for over-23-year-olds from April 2023 under the National Minimum Wage Act 1998 . The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives
53560-447: The right to be automatically enrolled in a basic occupational pension , whose funds must be protected according to the Pensions Act 1995 . Workers must be able to vote for trustees of their occupational pensions under the Pensions Act 2004 . In some enterprises, such as universities or NHS foundation trusts , staff can vote for the directors of the organisation. In enterprises with over 50 staff, workers must be negotiated with, with
53820-433: The right to freedom of association in ECHR article 11 , that protects workplace participation. While UK law creates a "charter protecting employees' rights" at work, people need a voice in enterprise management to get fair wages and standards beyond the minimum. In law, this means the right to vote for managers, or to vote on important issues such as pensions, and the right to collective bargaining . Trade unions are
54080-425: The right to request the right to get time off for training. There are three "pillars" of the UK pension system, which aim to ensure dignity and a fair income in retirement. The first pillar is the state pension , administered by the government, and funded by National Insurance contributions. The third pillar is private, or "personal pensions", which individuals buy themselves. The second pillar, and deriving from
54340-424: The rights to leave follow maternity rules for one primary carer. However, for fathers ordinarily, the position is less generous. The Paternity and Adoption Leave Regulations 2002 entitle a father to 2 weeks leave, at the statutory rate of pay. Both parents may also take "parental leave". This means that, until a child turns 5, or a disabled child turns 18, parents can take up to 13 weeks unpaid leave. Unless there
54600-460: The same income tax (albeit with more exemptions and deductions ) they pay 9% in National Insurance contributions, while an employee pays 12%. In addition, the employee's employer makes a standard 13.8% contribution, while the "self-employed" person has no employer to make such a contribution. These disparities give a large incentive for employers to misrepresent true employment status with "sham self-employment". The Working Time Regulations 1998 and
54860-401: The same rate as the workers in the factory. Mr. Weisfeld described how dependent the company were on their 11 home workers; the 70 employees in the factory could only do about 1,000 trousers per week which left about 5,000 to go out to home workers. The work they did was “an essential part of the production,” and it was the “van driver's duty to be as fair as he could” — presumably in distributing
55120-538: The savings in company shares , bonds , real estate or other financial products. Because pension schemes save up significant amounts of money, which many people rely on in retirement, protection against an employer's insolvency , or dishonesty, or risks from the stock market were seen as necessary after the 1992 Robert Maxwell scandal. Defined contribution funds must be administered separately, not subject to an employer's undue influence. The Insolvency Act 1986 also requires that outstanding pension contributions are
55380-414: The scope of the right to take collective action has been controversial. Reflecting a series of restrictions from 1979 to 1997, the law was partially codified in the Trade Union and Labour Relations (Consolidation) Act 1992 sections 219 to 246, which now falls below international standards. There is no consensus about the status of the right to strike at common law . On the one hand, the House of Lords and
55640-412: The second edition of Shawcross and Beaumont's Air Law . In 1965, he was appointed a Justice of the High Court and assigned to the Queen's Bench Division , receiving the customary knighthood . He was the first instance judge in the seminal case Anisminic Ltd v Foreign Compensation Commission , where he found in favour of the plaintiffs. Reversed by the Court of Appeal , his judgment was restored by
55900-461: The services they get for collective bargaining. Nor does it prevent collective agreements that would automatically enroll staff in the trade union, as happens under the Pensions Act 2008 , with the right for the worker to opt-out if they chose. The right of workers to collectively withdraw their labour has always been used to make employers stick to a collective agreement. At critical moments of history, it also combatted political repression (e.g.
56160-401: The similar direction in O'Kelly v Trusthouse Forte Plc. The appeal tribunal thought that the industrial tribunal had mistaken the ratio decidendi of Airfix Footwear Ltd v Cope [1978] ICR 1210, but in my judgment it was the appeal tribunal who misunderstood it and erred in correcting the industrial tribunal on the point. Tudor Evans J said [1983] ICR 319 , 326: “It was argued for the employers in
56420-510: The son of Edward Granville Browne , a leading Cambridge Orientalist, and of Alice Caroline Browne, daughter of the historian Francis Henry Blackburne Daniell . His grandfather was Sir Benjamin Chapman Browne , head of the shipbuilding and engineering firm R. & W. Hawthorn, Leslie and Company . His mother died in 1925 and his father died the following year. Browne was educated at Eton College , before going up to Pembroke College, Cambridge (honorary fellow, 1975), where his father had been
56680-418: The tax authorities had a central role in enforcing the proper distinction. Courts focused on "economic reality", and substance over form. It could also be relevant (but not decisive) if employees owned their tools, if they had the chance of profit, or bore the risk of loss. But in the late 1970s and 1980s, some courts introduced a new test of "mutuality of obligation". The dominant view of this, now approved by
56940-465: The technicality of the legislation, the most important case is Wilson and Palmer v United Kingdom , where Wilson's pay was not increased by the Daily Mail because he wished to remain on the union collective agreement, and Palmer's pay was not put up by 10 per cent because he would not consent to leaving the union, the NURMTW . The European Court of Human Rights held that any ambiguity about protection in UK law contravened ECHR article 11 because,
57200-485: The terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description. This meant that a group of car valeters, although their contracts said they were self-employed, and professed to have no obligation to undertake work, were entitled to
57460-479: The tribunal clearly refer to the lack of mutual obligation or whether the findings were that there was no obligation as to the number of hours the applicants should work or how many garments they should complete with the implication that the applicants were obliged to do some work. Both counsel agreed that there was a reference to a lack of mutual obligations in the sense for which Mr. Blair contends. The words in paragraph 8 are: "He [Mr. Weisfeld] did not consider that he
57720-413: The tribunal to indicate what factors led them to their conclusion is irrelevant. Although we are taking the point somewhat out of order, we shall now consider the submission that the industrial tribunal misunderstood the ratio in Airfix Footwear Ltd v Cope [1978] ICR 1210. We should say at once that whether or not the tribunal misunderstood or misinterpreted the decision is of no effect in this case. It
57980-404: The true inference from the facts, the true construction or interpretation of a written agreement or of an agreement partly oral or partly written or of a wholly oral agreement is a matter of law on which there is a right and a wrong view, and if an industrial tribunal comes to what in the view of this court is a wrong view of the true nature of the agreement, it can and should find an error in law on
58240-414: The union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. In principle, like any victimisation case in discrimination law, 'a detriment exists if a reasonable worker would or might take the view that the [treatment]
58500-433: The union to represent the workforce and will make a recognition declaration. Alternatively, fifth, it may determine that the position is less clear and that a secret ballot is in the interests of good industrial relations. Sixth, if a ballot takes place both the union and the employer should have access to employees, and be able to distribute their arguments, and threats, bribes or undue influence are forbidden. Seventh, when
58760-485: The union. However, if strikes are not conducted in accordance with law, employers can (and often do) go to court to seek an injunction against a union conducting the strike, or potentially damages. A court should not grant any injunction against a strike unless there is a 'serious question to be tried' and it must consider where the 'balance of convenience lies'. In The Nawala the House of Lords stressed that injunctions should be granted rarely and give 'full weight to all
59020-424: The very conclusion of his judgment that the conclusion to be drawn from the facts as to the true legal relationship between the parties after the right tests have been applied is a question of fact. If by that he meant that it was a question on which this court cannot interfere, I prefer the view of Megaw L.J. that it is a question of law, in these cases of service or services as in the case of lease or licence, whether
59280-408: The way courts construe a contract must be "intellectually segregated" from the general law of contract , because of the employee's relation of dependency. In this case, Ms Barratt was told her employment was terminated in a letter that she opened 3 days after its arrival. She claimed her dismissal was unfair within three months (the time limit to bring claims in Tribunals) after reading the letter, but
59540-404: The way work is done in accordance with business needs, so long as it does not contradict a contract's express terms, which always require an employee's consent, or a collective agreement. The status of 'flexibility clauses', purporting to allow employers the discretion to vary any contract term, has been contested, as it will often enable abuse of power that the common law controls. The limits of
59800-457: The work had been done for seven years and for five days a week and concluded that, on the material before it, the tribunal was well entitled to come to the conclusion that there was, by reason of the duration of the relationship, a continuing contract of employment. We do not read the judgment as establishing the proposition that before a contract of service can exist there must be the mutual obligations for which Mr. Blair contends. This leads us to
60060-433: The work is classified as "hazardous". Moreover, every worker must receive at least 11 consecutive hours of rest in a 24-hour period, and in every day workers must have at least a 20-minute break in any 6-hour period. The most controversial provisions in the working time laws concerns the right to a maximum working week. The labour movement has always bargained for a shorter working week as it increased economic productivity:
60320-407: The workmen. We have no acts of parliament against combining to lower the price of work; but many against combining to raise it. In all such disputes the masters can hold out much longer . A landlord, a farmer, a master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist
60580-417: The workplace is privacy , which is protected in ECHR article 8 and the Data Protection Act 2018 , which includes the General Data Protection Regulation . First, it is an offence under the Regulation of Investigatory Powers Act 2000 section 1(3) for an employer to intercept any private communication, such as reading email, searching an inbox, or tracking calls or websites, without lawful authority. Second,
60840-531: The workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary". An employer cannot read private messages, for instance to a fiancé or family member. This followed several other similar cases. In Halford v United Kingdom the European Court of Human Rights held that intercepting an employee's phone calls violated their private life, particularly since they had not been told of any extent of monitoring, and they had been given
61100-452: Was Mr. Tabachnik's main contention for the company before this court. I at first thought that Mr. Tabachnik's task had been made easier by a concession, but that concession has been withdrawn, and I have come to the conclusion that his interesting and forceful argument must fail and that no misdirection on the point can fairly be attributed to the industrial tribunal. For the obligation required of an employer we were referred to old cases where
61360-411: Was a contract of service. The appeal tribunal acknowledged that the absence of mutual obligations, where work is offered and performed sporadically, might lead to the conclusion that there was a series of contracts of service or a contract for services but that the answer would depend on the facts of each individual case. The court then reviewed the evidence as found by the tribunal, including the fact that
61620-429: Was achieved. After the Second World War, under the first majority Labour government of Clement Attlee which promised to "win the peace", collective agreements covered over 80 per cent of the workforce. As the British Empire dissolved, migration from Commonwealth countries, and record levels of female workplace participation, changed Britain's workforce. While the common law was sometimes progressive, but mostly not,
61880-445: Was amended after ASLEF v United Kingdom to make clear that unions may exclude members whose beliefs or actions are opposed to the union's legitimate objectives. In ASLEF , a member named Lee was involved in the British National Party , a neo-fascist organisation committed to white supremacy, and Lee himself was involved in violence and intimidation against Muslim people and women. The European Court of Human Rights held that ASLEF
62140-590: Was breaking down. The more enlightened Truck Acts , dating from 1464, required that workers be paid in cash and not kind. In 1772 slavery was declared to be illegal in R v Knowles, ex parte Somersett , and the subsequent Slave Trade Act 1807 and Slavery Abolition Act 1833 enforced prohibition throughout the British Empire . In the 19th century, production boomed. Gradually people's relationship to their employers moved from one of status - formal subordination and deference - to "freedom of contract" in choosing where to work. However, freedom of contract did not, as
62400-503: Was concisely stated by Stable J. in a sentence in Chadwick v Pioneer Private Telephone Co Ltd [1941] 1 All ER 522, 523D: "A contract of service implies an obligation to serve, and it comprises some degree of control by the master." That was expanded by Mackenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 515: "A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of
62660-468: Was entitled to expel Lee because, so long as it did not abuse its organisational power or lead to individual hardship, "unions must remain free to decide in accordance with union rules, questions concerning admission to and expulsion from the union." Lastly, union members also have the more dubious "right" to not strike in accordance with the decision of the executive. This precludes a union disciplining members who break solidarity, and has been criticised by
62920-416: Was held that dismissing a teacher, simply for being a member of the German Communist Party and expressing political views, violated ECHR article 10 . There was no expression of disobedience to the country's constitution or democratic order, and so a complete ban on party membership was disproportionate. Second there could be disclosures to improve an employer's workplace practices. In Heinisch v Germany it
63180-444: Was held to be unlawful to dismiss from an elderly care home a nurse who complained to a criminal prosecutor about shortages in the home, creating intolerable pressure on staff, and putting patients at risk: there was a failure to balance the public interest in care for the elderly and the employer's business interests, and dismissal was an extreme sanction that could have a chilling effect on all freedom of speech if allowed. Third, there
63440-532: Was in all the circumstances to his detriment'. If the UK statutes are not updated, the Human Rights Act 1998 section 3 requires interpretation of the common law, or statute, to reflect ECHR principles. More specific legislation, with the Data Protection Act 1998 sections 17-19 and the Employment Relations Act 1999 (Blacklists) Regulations 2010 , penalises a practice of recording or blacklisting union members, and potentially leads to criminal sanctions for employers and agencies who do so. Third, union members have
63700-399: Was little evidence of problems before) saying no candidate may be unreasonably excluded from an election, all voters are equal, and postal ballots must be available. In practice, UK union elections are often competitive, although voter turnouts (without electronic voting) tend to be low. Minor procedural irregularities that would not affect outcomes do not undermine an election, but otherwise
63960-421: Was no obligation as to the number of hours the applicants should work or how many garments they should complete with the implication that the applicants were obliged to do some work. Both counsel agreed that there was a reference to a lack of mutual obligations in the sense for which Mr. Blair contends." Mr. Blair's contention had been, as I have indicated, that on the evidence the company were not obliged to supply
64220-537: Was not a union member. However, the European Court of Human Rights decided in 1981 that "freedom of association" under article 11 also entailed "freedom from association". This shift in the law coincided with the start of a Europe-wide trend toward falling union membership, as the closed shop had been the main mechanism to keep up union support, and thus collective bargaining for fairer workplaces. The ECHR does not, however, prevent unions pursuing fair share agreements , where non-union members contribute to union fees for
64480-415: Was not paid when a company had gone insolvent, this ranked like any other unsecured debt in insolvency, and did not have priority over banks that hold floating charges . In addition, there exists a Pensions Ombudsman who may hear complaints and take informal action against employers who fall short of their statutory duties. If all else fails, the Pension Protection Fund guarantees a sum is ensured, up to
64740-415: Was not, however present in this case. Does the law require any and what mutual obligations before there can be a contract of service? If the law as to contracts of service is that there must be mutual obligations which were not found by the industrial tribunal or cannot be inferred from the evidence, then the industrial tribunal misdirected itself in law and its determination can and should be set aside. That
65000-406: Was one of fact, not of law. This has been followed in Carmichael in 1999 by the House of Lords. Stephenson LJ discussed what "mutuality of obligation" meant. Was there then any misdirection in law on the part of the industrial tribunal? I do not see how it could be submitted that the tribunal erred in directing itself by the “business on her own account” test in the light of the approval given to
65260-475: Was partly based on the model of the US National Labor Relations Act 1935 , but because of its cumbersome nature it strongly encourages the parties to seek voluntary agreement in the spirit of cooperation and good faith . Though most collective agreements will come about voluntarily, the law has sought to ensure that workers have true freedom of association by prohibiting employers from deterring union membership, and by creating positive rights for members. First,
65520-416: Was placed into a comprehensive code in the Equality Act 2010 . This was backed by European Union law , which the UK acceded to with the European Communities Act 1972 . Although labour laws in the early European Treaties were minimal, the Social Chapter of the Maastricht Treaty brought employment rights squarely into EU law. Meanwhile, starting from the Contracts of Employment Act 1963 , workers gained
65780-401: Was reversed by Labour in 1974, but after 1979 unions became heavily regulated. Today union governance can be configured in any manner, so long as it complies with the compulsory standards set by the Trade Union and Labour Relations (Consolidation) Act 1992 . Before 1979, all unions had systems of elections and were democratic. In most the members elected union executives directly. However, it
66040-431: Was technically guilty of illegally attempting to gain a pecuniary advantage by deception under the Theft Act 1968 section 16. After being struck in the head by a defective gangplank he suffered worse fits than before, but the Court of Appeal, by a majority, held his illegal act precluded any compensation. Tort law remains relevant when there is scientific uncertainty about an injury's cause. In asbestos disease cases,
66300-404: Was that employment involved as one factor a necessity for direction and control to be exercised by the employer. As a general rule the employee has to be at the disposition of the employer. In ordinary layman's language the question is: who has the last word in determining whether and how the employee is required to work? Here the workers, in our judgment, were not required to work in accordance with
66560-431: Was thought that indirect elections (e.g. where members voted for delegates, who elected executives in conference) made a minority of unions more "out of touch" and militant than was natural. Trade Union and Labour Relations (Consolidation) Act 1992 , section 46, requires that members have direct voting rights for the executive, which cannot stay in office for more than five years. In addition, rules were passed (though there
66820-401: Was to accept all the matters of evidence reviewed in paragraph 8. If we are wrong in that conclusion, the difficulty is resolved by the opening words of paragraph 11: "Those are the facts on which we have to determine whether or not these ladies are employees." In saying this the industrial tribunal were referring to all the preceding paragraphs in which they summarised the evidence: if there were
67080-448: Was under any obligation to home workers or they to him." We conclude that there was evidence and a finding of lack of mutual obligation, although our task would have been easier had the tribunal, after reviewing the evidence, clearly set out the findings of fact which they were making. It is convenient also at this stage to consider Mr. Blair's submission that the tribunal failed, when deciding the question which they asked themselves (whether
67340-584: Was working time led a number of countries to exercise the same "opt out" derogation as the UK, but limited to medical practice. The Health and Safety Executive is the UK body charged with enforcing the working time laws, but it has taken a "light touch" approach to enforcement. Possibly the most important time off during working life will be to care for newly born or adopted children. However, unlike paid holidays or breaks that are available for "workers", child care rights are restricted to " employees ". They are also less favourable for male parents, which exacerbates
67600-468: Was wrongly decided, and I do not think it was. I cannot see why well founded expectations of continuing homework should not be hardened or refined into enforceable contracts by regular giving and taking of work over periods of a year or more, and why outworkers should not thereby become employees under contracts of service like those doing similar work at the same rate in the factory. If then the industrial tribunal reached their unanimous decision, approved by
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