LABOUR LAW REVIEW 1997 BY JEREMY MCMULLEN QC AND JENNIFER EADY
THE
INSTITUTE OF
EMPLOYMENT RIGHTS
Both writers practise as barristers in England, Wales and Northern Ireland from chambers in London and Bristol, and are members of the IER. Jeremy McMullen QC was an elected official of the GMB. He has been chair of the Industrial Law Society and Employment Law Bar Association and an independent expert under the Equal Pay Act. Jennifer Eady is standing junior counsel to the NUM and NUJ, and is a Treasury junior counsel. She holds office in and is active on behalf of the Employment Law Bar Association, Industrial Law Society and the Association of Women Barristers. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the named authors. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 1 873271 51 4 September 1997 published by the Institute of Employment Rights 160 Falcon Road London SW11 2LN 0171 738 9511 e-mail ier@gn.apc.org designed by Megan Dobney 0181 761 7532 printed by Upstream (TU) 0171 358 1344 ÂŁ2 for trade unions and students ÂŁ10 others THE
INSTITUTE OF
EMPLOYMENT RIGHTS
labour law review 1997
executive summary
by Jeremy McMullen QC and Jennifer Eady
i
labour law review 1997
contents
ii
introduction
1
rights of trade union members
1
industrial tribunals
4
employment rights
6
unfair dismissal
10
redundancy
12
transfers
13
unlawful discrimination
15
pregnancy and maternity rights
18
equal pay and pensions
20
health and safety
22
endnotes
24
labour law review 1997
introduction It is customary in this annual Review for us to fulminate about the encroachment on workers’ rights made by legislation and the interpretation of the courts in the 12 months between meetings of the TUC at different seaside locations. This year we are able to welcome the commitments of the Labour Government elected on 1 May 1997, but at the same time point out that change of some of the entrenched aspects of labour law will take some years to achieve. From an entirely personal view as authors of Employment Tribunal Procedure, the news that the Government supports Lord Archer QC’s Employment Bill among other things providing for tribunals to be renamed Employment Tribunals and to offer alternative dispute resolution is very welcome. As are commitments to legislate for EU Social Chapter incorporation to include the social partners’ agreement on information and consultation rights, the implementation of a minimum wage, and a White Paper on labour law reforms including rights to recognition and to claim unfair dismissal if sacked in a dispute. The effectiveness of the EOC is to be reviewed and there is to be legislation to incorporate the European Convention on Human Rights into UK law, which will have a major impact on the approach of the courts to workplace activity.
The new Labour Government committed itself prior to the election to retaining all existing legislation on trade unions, notwithstanding this represented the most restrictive regime of employment rights in Europe. On the other hand, Labour indicated its inclination to make changes to the law to overturn the Wilson and
labour law review
rights of trade union members
1
WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy, Sir Peter Pain, and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 160 Falcon Road, London SW11 2LN, 0171 738 9511.
£2 TRADE UNIONS AND STUDENTS £10 OTHERS