LABOUR LAW REVIEW 2001 BY JENNIFER EADY AND REBECCA TUCK
Jennifer Eady is chair of the Industrial Law Society. She is standing junior counsel to the NUM and the NUJ, and is a Treasury junior counsel. Rebecca Tuck is a barrister specialising in employment and personal injury law at Old Square Chambers in London and Bristol. She has recently been involved in a number of high value discrimination cases. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 1 873271 88 3 September 2001 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail ier@gn.apc.org www.ier.org.uk printed by Upstream (TU) 020 7207 1560 ÂŁ3 for trade unions and students ÂŁ10 others THE
INSTITUTE OF
EMPLOYMENT RIGHTS
labour law review 2001
executive summary
by Jennifer Eady and Rebecca Tuck
i
contents
introduction
1
industrial action
1
employment rights
3
breach of contract and the duty to maintain trust and confidence restrictive covenants
unfair dismissal
7
TUPE
9
remedies bonus payments pension loss injury to feelings compromise agreements
unlawful discrimination
labour law review 2001
sexual orientation sex discrimination race discrimination disability reasonable adjustments maternity rights
ii
5 6
11 11 11 12 12
13 13 14 15 18 19 22
equal pay and pensions
23
health and safety
25
employment tribunals
26
endnotes
28
recent publications
30
labour law review 2001
introduction In a year that has seen a Labour government achieve an historic landslide majority for a second term in power, many readers will have been disappointed to learn of proposals to impose charges on those bringing claims in the employment tribunal. We are told that this is due to the huge increase in tribunal claims in recent years but it is a sad reflection upon modern industrial relations that so many workers feel the need to resort to legal proceedings. Although there have been attempts to clarify the law, notably in the area of maternity rights, the cases reported in this year’s Review again reflect the complexity of labour law today, suggesting that the number of tribunal applications is unlikely to decline in the near future. Often the greatest difficulties still seem to arise in seeking to answer the most basic questions in employment law. As the authors of this year’s Review, we readily appreciate the difficulty in attempting to precis the year’s developments, particularly as this is the first time we have had to do so without the assistance of our colleague Jeremy McMullen QC, who has felt the need for a break after a decade of authorship.
As readers will be aware, this year has again seen industrial action by London Underground workers. ASLEF called its members who work on the underground out on strike and was not challenged. But other unions did not escape being hauled before the courts and again we have seen complex legal wrangling to see whether the unions have managed to jump through the appropriate hoops in order to be able to call their members out.
introduction
industrial action
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 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 177 Abbeville Road, London SW4 9RL, 020 7498 6919.
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