In the field of labour law, recent contributions to the theory of legal form have addressed the question of whether the purpose of labour law is merely to reproduce capitalist social relations. The resulting debate has acted as a trigger for profound self-reflection among both labour law scholars and the labour movement. While the theory of legal form refers to labour law as ‘capitalist law’, other branches of labour law theory and scholarship, including those of the French legal scholar Alain Supiot, have characterised it as ‘collective’, ‘class’ or ‘social’ law. Both positions claim that the purpose of labour law is to enable transformative social change. Taking account of arguments put forward in this debate, the current paper examines employment practices and collective organising in four Slovenian companies. The aim is to determine how the dynamics that emerge between individual and collective labour rights can create the conditions for social change. The paper thereby addresses the question of whether less or more labour law is needed, and what kind of labour law. In conclusion, the analysis raises the issue of the role of universal labour rights.
{"title":"Less or More Labour Law for Social Change?","authors":"Maja Breznik","doi":"10.1093/indlaw/dwae032","DOIUrl":"https://doi.org/10.1093/indlaw/dwae032","url":null,"abstract":"In the field of labour law, recent contributions to the theory of legal form have addressed the question of whether the purpose of labour law is merely to reproduce capitalist social relations. The resulting debate has acted as a trigger for profound self-reflection among both labour law scholars and the labour movement. While the theory of legal form refers to labour law as ‘capitalist law’, other branches of labour law theory and scholarship, including those of the French legal scholar Alain Supiot, have characterised it as ‘collective’, ‘class’ or ‘social’ law. Both positions claim that the purpose of labour law is to enable transformative social change. Taking account of arguments put forward in this debate, the current paper examines employment practices and collective organising in four Slovenian companies. The aim is to determine how the dynamics that emerge between individual and collective labour rights can create the conditions for social change. The paper thereby addresses the question of whether less or more labour law is needed, and what kind of labour law. In conclusion, the analysis raises the issue of the role of universal labour rights.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142208506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
: This note analyses the Court of Appeal’s decision in the Boohene case. The defendant paid the ‘London Living Wage’ to its own workers but did not require its contractors to pay this rate tothe workers they employed. The claimants sought to challenge this as race discrimination against them as ‘contract workers’ under s. 41 Equality Act 2010, because of a clear difference in the ethnicities of the two groups of workers. The claim was unsuccessful because the Court of Appeal ultimately concluded that the claimants’ wages were set by their employer, the contractor, not by the defendant, even though the defendant influenced their wages by setting the price of the contract. The case highlights the complex and sometimes problematic relationship between outsourcing and wages.
{"title":"Procurement and the ‘London Living Wage’: Boohene v Royal Parks Ltd","authors":"ACL Davies","doi":"10.1093/indlaw/dwae027","DOIUrl":"https://doi.org/10.1093/indlaw/dwae027","url":null,"abstract":": This note analyses the Court of Appeal’s decision in the Boohene case. The defendant paid the ‘London Living Wage’ to its own workers but did not require its contractors to pay this rate tothe workers they employed. The claimants sought to challenge this as race discrimination against them as ‘contract workers’ under s. 41 Equality Act 2010, because of a clear difference in the ethnicities of the two groups of workers. The claim was unsuccessful because the Court of Appeal ultimately concluded that the claimants’ wages were set by their employer, the contractor, not by the defendant, even though the defendant influenced their wages by setting the price of the contract. The case highlights the complex and sometimes problematic relationship between outsourcing and wages.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142208504","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It has taken a while, but what has been described as the first ‘gig economy’ case has been decided by the Irish Supreme Court. Although the case did not involve the use of a platform to organise work, it did require the Supreme Court to rule on the question of the employment status of pizza delivery drivers, all of whom were labelled as ‘independent contractors’ in the contracts between the company and the drivers. The case was taken by Revenue, which contended that the drivers, in fact, should have been classified as employees for tax purposes. The Supreme Court took the opportunity to present a long and detailed judgment on the correct approach to determining employment status, and, in particular, on the role of ‘mutuality of obligations’ in this consideration, with an extensive review of case law from the UK. This analysis discusses the case, with a particular emphasis on the view taken by the Court on mutuality of obligations in the context of ‘casual work’.
{"title":"Domino Dancing: Mutuality of Obligation and Determining Employment Status in Ireland","authors":"Michael Doherty","doi":"10.1093/indlaw/dwae018","DOIUrl":"https://doi.org/10.1093/indlaw/dwae018","url":null,"abstract":"It has taken a while, but what has been described as the first ‘gig economy’ case has been decided by the Irish Supreme Court. Although the case did not involve the use of a platform to organise work, it did require the Supreme Court to rule on the question of the employment status of pizza delivery drivers, all of whom were labelled as ‘independent contractors’ in the contracts between the company and the drivers. The case was taken by Revenue, which contended that the drivers, in fact, should have been classified as employees for tax purposes. The Supreme Court took the opportunity to present a long and detailed judgment on the correct approach to determining employment status, and, in particular, on the role of ‘mutuality of obligations’ in this consideration, with an extensive review of case law from the UK. This analysis discusses the case, with a particular emphasis on the view taken by the Court on mutuality of obligations in the context of ‘casual work’.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141863794","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Traineeships are becoming too big an issue to ignore: over half of all young Europeans now complete one. This article provides the first comprehensive critique of EU-level regulation on traineeships, uncovering the problems and paradoxes within the existing regime and offering solutions. Part I examines the problems with the current patchwork of regulation, comprised of the Quality Framework on Traineeships, Court of Justice case-law and European Committee of Social Rights’ decision in YFJ v Belgium on unpaid internships. Challenges include the ‘hollow’ status of a trainee, the paradoxical requirements for employers to provide ‘solid and meaningful’ learning content without offering ‘real or genuine’ work and the incoherence of the ‘bogus’ traineeship approach, which is dependent upon a ‘non-bogus’ traineeship that does not exist. Part II then outlines three criteria for future regulation with a view to resolving the problems of the existing regime. Part III then evaluates the new regulatory proposals of the European Parliament and the Commission against these criteria. It is ultimately argued that the European Parliament’s approach is preferable to the Commission’s ‘disguised employee’ approach, since it fundamentally re-envisions trainees as workers with additional rights, reversing the current negative trainee status as those without working rights.
{"title":"The Problems and Paradoxes with the EU’s Regulation of Traineeships: A Way Forward","authors":"Joanna Helme","doi":"10.1093/indlaw/dwae022","DOIUrl":"https://doi.org/10.1093/indlaw/dwae022","url":null,"abstract":"Traineeships are becoming too big an issue to ignore: over half of all young Europeans now complete one. This article provides the first comprehensive critique of EU-level regulation on traineeships, uncovering the problems and paradoxes within the existing regime and offering solutions. Part I examines the problems with the current patchwork of regulation, comprised of the Quality Framework on Traineeships, Court of Justice case-law and European Committee of Social Rights’ decision in YFJ v Belgium on unpaid internships. Challenges include the ‘hollow’ status of a trainee, the paradoxical requirements for employers to provide ‘solid and meaningful’ learning content without offering ‘real or genuine’ work and the incoherence of the ‘bogus’ traineeship approach, which is dependent upon a ‘non-bogus’ traineeship that does not exist. Part II then outlines three criteria for future regulation with a view to resolving the problems of the existing regime. Part III then evaluates the new regulatory proposals of the European Parliament and the Commission against these criteria. It is ultimately argued that the European Parliament’s approach is preferable to the Commission’s ‘disguised employee’ approach, since it fundamentally re-envisions trainees as workers with additional rights, reversing the current negative trainee status as those without working rights.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141778910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Legal Concept of Work","authors":"Emily Rose","doi":"10.1093/indlaw/dwae020","DOIUrl":"https://doi.org/10.1093/indlaw/dwae020","url":null,"abstract":"","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141817543","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The practice of firing employees and then rehiring them in their same jobs on inferior conditions and lower wages (‘fire and rehire’) has emerged as a matter of acute political controversy. Its use in the United Kingdom has become even more controversial in the period since the Covid-19 pandemic. A brutal example of the practice was seen in the P&O case, which could be viewed as an example of ‘fire and replace’ as well as ‘fire and rehire’. In March 2022, P&O Ferries summarily dismissed 786 seafarers, setting aside £44 million to meet the anticipated compensation costs arising from its failure to comply with multiple employment law obligations owed to the crew. Approximately 100 of those dismissed were re-engaged on new terms, the remainder replaced by new crew engaged through agencies on inferior terms and conditions. This article addresses what would need to be done to ‘ban’ fire and rehire, and the related practice of fire and replace. It is argued that fire and rehire is a symptom of system failure which will not be addressed by sticking plaster solutions or by an unenforceable code, but by addressing the underlying causes. This means better regulation, treating collective agreements and contracts of employment with greater respect, better procedures for the negotiation of change, and more effective remedies designed to restrain employers from acting unlawfully. In addressing these matters we draw extensively on the experience of Australia where fire and rehire as understood or practised in the United Kingdom is largely unknown.
{"title":"‘Fire and Rehire’: Four Lessons from Australia","authors":"Marilyn J Pittard, K D Ewing","doi":"10.1093/indlaw/dwae023","DOIUrl":"https://doi.org/10.1093/indlaw/dwae023","url":null,"abstract":"The practice of firing employees and then rehiring them in their same jobs on inferior conditions and lower wages (‘fire and rehire’) has emerged as a matter of acute political controversy. Its use in the United Kingdom has become even more controversial in the period since the Covid-19 pandemic. A brutal example of the practice was seen in the P&O case, which could be viewed as an example of ‘fire and replace’ as well as ‘fire and rehire’. In March 2022, P&O Ferries summarily dismissed 786 seafarers, setting aside £44 million to meet the anticipated compensation costs arising from its failure to comply with multiple employment law obligations owed to the crew. Approximately 100 of those dismissed were re-engaged on new terms, the remainder replaced by new crew engaged through agencies on inferior terms and conditions. This article addresses what would need to be done to ‘ban’ fire and rehire, and the related practice of fire and replace. It is argued that fire and rehire is a symptom of system failure which will not be addressed by sticking plaster solutions or by an unenforceable code, but by addressing the underlying causes. This means better regulation, treating collective agreements and contracts of employment with greater respect, better procedures for the negotiation of change, and more effective remedies designed to restrain employers from acting unlawfully. In addressing these matters we draw extensively on the experience of Australia where fire and rehire as understood or practised in the United Kingdom is largely unknown.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141742323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper analyses the case of Higgs v Farmor’s School, a decision of the Employment Appeal Tribunal concerning unlawful discrimination on the basis of the manifestation of protected philosophical beliefs. It discusses the relationship between human rights standards and discrimination law standards in the interpretation of direct discrimination on grounds of religion or belief. While this decision goes a long way towards providing guidance on how this interaction is to be parsed out in the context of discrimination law, it nevertheless leaves certain important questions open. Finally, the paper argues that much of the discussion of proportionality around the censorship of protected belief manifestation is misconstrued. It is commonly accepted without question that the legitimate aim pursued by censorship is the protection of the rights of others. Yet in the cases dealing with manifestation such as this, there is an extremely remote threat to rights, if one exists at all. The expression of views that some take offense to is not a human rights violation. Rather, censorship of such views is better described as aimed at the protection of morals; the enforcement of speech codes or workplace standards in order to maintain a particular ethos or atmosphere of professionalism. There is then an interesting question which arises: would the choice of justification grounded in protecting morals over the rights of others affect the intensity of the proportionality assessment? There is a plausible argument that attempts to justify infringement on the exercise of fundamental rights by reference to a desire to impose a moral code, unconnected to the rights of others, would attach more intensive scrutiny. If this is true, it is incumbent upon courts not to accept at face value that employment speech codes are necessary to protect the rights of others, certainly not without more searching analysis of which rights in particular are claimed to be infringed by a failure to mandate speech. This is of particular salience given that courts have repeatedly stressed that the right to freedom of expression includes the right to say things that are offensive, shocking or even disturbing.
{"title":"Discrimination and Manifestation of Belief: Higgs v Farmor’s School [2023] EAT 89","authors":"Michael Foran","doi":"10.1093/indlaw/dwae009","DOIUrl":"https://doi.org/10.1093/indlaw/dwae009","url":null,"abstract":"This paper analyses the case of Higgs v Farmor’s School, a decision of the Employment Appeal Tribunal concerning unlawful discrimination on the basis of the manifestation of protected philosophical beliefs. It discusses the relationship between human rights standards and discrimination law standards in the interpretation of direct discrimination on grounds of religion or belief. While this decision goes a long way towards providing guidance on how this interaction is to be parsed out in the context of discrimination law, it nevertheless leaves certain important questions open. Finally, the paper argues that much of the discussion of proportionality around the censorship of protected belief manifestation is misconstrued. It is commonly accepted without question that the legitimate aim pursued by censorship is the protection of the rights of others. Yet in the cases dealing with manifestation such as this, there is an extremely remote threat to rights, if one exists at all. The expression of views that some take offense to is not a human rights violation. Rather, censorship of such views is better described as aimed at the protection of morals; the enforcement of speech codes or workplace standards in order to maintain a particular ethos or atmosphere of professionalism. There is then an interesting question which arises: would the choice of justification grounded in protecting morals over the rights of others affect the intensity of the proportionality assessment? There is a plausible argument that attempts to justify infringement on the exercise of fundamental rights by reference to a desire to impose a moral code, unconnected to the rights of others, would attach more intensive scrutiny. If this is true, it is incumbent upon courts not to accept at face value that employment speech codes are necessary to protect the rights of others, certainly not without more searching analysis of which rights in particular are claimed to be infringed by a failure to mandate speech. This is of particular salience given that courts have repeatedly stressed that the right to freedom of expression includes the right to say things that are offensive, shocking or even disturbing.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141192204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the Court of Appeal decision in Burn v Alder Hey (Burn), there are obiter suggestions that the employment contract contains an implied term that would require the employer to act fairly during a disciplinary process. In a recent article in this journal, Collins and Golding (the authors) endorse this direction of travel and explore what they see as a number of advantages that would accrue for employees (and other workers) should the courts hold that such a term is indeed part of the law of contract. This article seeks to argue that recognition of the term would be misguided.
{"title":"Disavowing an Implied Term of Fairness","authors":"Douglas Brodie","doi":"10.1093/indlaw/dwae014","DOIUrl":"https://doi.org/10.1093/indlaw/dwae014","url":null,"abstract":"\u0000 In the Court of Appeal decision in Burn v Alder Hey (Burn), there are obiter suggestions that the employment contract contains an implied term that would require the employer to act fairly during a disciplinary process. In a recent article in this journal, Collins and Golding (the authors) endorse this direction of travel and explore what they see as a number of advantages that would accrue for employees (and other workers) should the courts hold that such a term is indeed part of the law of contract. This article seeks to argue that recognition of the term would be misguided.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140982404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For at least the last 40 years, law and policy in relation to work in the UK have been rooted in a paradigm of prevention: preventing employers from abusing the power they enjoy over workers in ways that are harmful to the latter’s interests. This article argues that this paradigm is rooted in a partial and structural, understanding of power, that is incapable of grappling with the true scope of the problems associated with power as it relates to work in the context of capitalism. Exposing the issues that exist with this understanding of power, and advancing an alternative structural conceptualisation, the article explores the implications that such an understanding might have for labour law and policy.
{"title":"From Prevention to Empowerment: A New Model for UK Labour Law","authors":"Zoe Adams","doi":"10.1093/indlaw/dwae015","DOIUrl":"https://doi.org/10.1093/indlaw/dwae015","url":null,"abstract":"For at least the last 40 years, law and policy in relation to work in the UK have been rooted in a paradigm of prevention: preventing employers from abusing the power they enjoy over workers in ways that are harmful to the latter’s interests. This article argues that this paradigm is rooted in a partial and structural, understanding of power, that is incapable of grappling with the true scope of the problems associated with power as it relates to work in the context of capitalism. Exposing the issues that exist with this understanding of power, and advancing an alternative structural conceptualisation, the article explores the implications that such an understanding might have for labour law and policy.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140935904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This study examines five years of Employment Tribunal judgments on flexible working requests and uses a thematic analysis to identify the issues that have been litigated and to assess how employment tribunals, employees and employers have navigated the Act’s provisions. Whilst the right to request flexible working has been much critiqued because of its limited nature, there is little evidence and discussion of whether it provides a useable and effective process for employees and employers on its own terms. This article identifies three problems with the current legislation: employees can find it difficult to comply with the requirements for a valid statutory request, the difficulty of establishing and complying with the time limits in the legislation and finally the difficulty for tribunals in defining and applying core concepts relating to its power of review over employers’ decisions. These issues will not be resolved through the new Employment Relations (Flexible Working) Act 2023 and in some ways will be made more difficult.
{"title":"The Right to Request Flexible Working: Evidence from Employment Tribunal Judgments","authors":"Megan Pearson","doi":"10.1093/indlaw/dwae016","DOIUrl":"https://doi.org/10.1093/indlaw/dwae016","url":null,"abstract":"This study examines five years of Employment Tribunal judgments on flexible working requests and uses a thematic analysis to identify the issues that have been litigated and to assess how employment tribunals, employees and employers have navigated the Act’s provisions. Whilst the right to request flexible working has been much critiqued because of its limited nature, there is little evidence and discussion of whether it provides a useable and effective process for employees and employers on its own terms. This article identifies three problems with the current legislation: employees can find it difficult to comply with the requirements for a valid statutory request, the difficulty of establishing and complying with the time limits in the legislation and finally the difficulty for tribunals in defining and applying core concepts relating to its power of review over employers’ decisions. These issues will not be resolved through the new Employment Relations (Flexible Working) Act 2023 and in some ways will be made more difficult.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2024-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140935899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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