Contemporary Issues in Law - Volume 12 - Issue 2


Professor Brenda Barrett Department of Law, Middlesex University

In a research paper, entitled 'Labour Law After Labour' published in 2011 Harry Arthurs developed a theory that labour law has, over the course of time gone through two phases and now is in a state of crisis . In his brief overview of the history of labour law he suggests that in the early years of the industrial revolution it was designed to protect the most vulnerable workers against physical and moral brutality but through much of the 20th was largely focussed on collective issues. He then suggests that the type of 'labourers' for whom labour law was designed no longer exist and makes proposals for the way forward. This paper considers whether this analysis, based on Canadian experience, is reflected in the development of occupational health and safety law in Britain. It will review the past in two sections 'Employee Protection' and 'Social Partnership', then after overviewing 'Social Change' in the last quarter century it will consider the future.

The 'Crisis' in Labour Law and theoretical approaches to labour law regulation: the example of the UK Employment Law Review
Lisa Rodgers
Senior Lecturer, The School of Law, Birmingham City University

The aim of this paper is to fit recent legal developments into theoretical perspectives on labour law. On the one hand, we are witnessing a continued commitment to liberal perspectives at international and EU level, with labour law debates framed increasingly in terms of human rights. On the other hand, at national level there are a number of theoretical perspectives which appear to be in conflict. On the one hand, there is the deregulatory tendency of liberalism, with the decrease in legal protections associated with the proposed extension of the qualifying period for unfair dismissal and the reduction in the consultancy period for redundancy. On the other hand, there are signs of scepticism about the ability of human rights to bring justice, and seeking alternatives to the legal regulation of the employment relation. These 'alternatives' might be viewed as more aligned with the ' traditional' view of the function of labour law before the confluence of labour law and human rights discourse. The question is how far a return to traditional approaches to labour law is feasible or desirable, and whether there is any other alternative to the (increasing) association of labour law and human rights which will not descend into the simple deregulation of employment relationships.

Whither British Labour Law Crisis, What Crisis? An historical perspective on the Juridification of British Industrial Relations
Dr Roger Welch
School of Law, University of Portsmouth

The paper will be partly historical in that it will reflect on the reasons the traditional system of collective laissez-faire was increasingly replaced with detailed legal regulation. The paper will examine the role of unfair dismissal law in removing issues of discipline and dismissal from the arena of industrial conflict, and the role of employment protection rights in securing trade union acceptance of wage restraint in the form of the Social Contract. The underlying argument will be that, whilst these employment rights are very important for workers today and should be defended, the rights were brought into existence primarily to undermine trade union organisation rather than secure workplace justice.

The central contention of the paper is that, whatever the deregulatory preferences and instincts of the current government, it is not possible for governments to turn back the clock by creating a new form of laissez-faire which removes employment rights ? be they individual or collective ? from the workplace. This is partly because the juridification of workplace conflict must remain the State's preferred mechanism for the resolution of employment disputes; and partly because, in contrast with the past, European law provides an important constraint on a government's ability to deregulate the employment relation.

The paper will conclude by arguing that a key role for progressive employment lawyers today is to demonstrate the negative consequences of restricting employment rights

European Labour Law in Crisis: The Demise of Social Rights
Professor Nicole Busby
University of Strathclyde and Dr Rebecca Zahn Lecturer in Law, University of Stirling

Syrpis and Novitz have argued that 'the choices which the Court has made in the Viking and Laval cases represent a tipping of the delicate balance between economic and social rights in favour of the former.' (ELR 3 (2008) 411). The Court of Justice's (CoJ) judgments which led to a prolonged sense of crisis in European Labour Law came at a time when increasing emphasis was already being put on soft law mechanisms at EU level to achieve harmonisation across national employment policies in place of hard law regulation. In applying the CoJ's decision in Laval, the Swedish labour court contributed to this sense of crisis by going beyond what was necessary to comply with the decision much to the detriment of national trade unions. Overall, there is little enthusiasm at national or European levels to develop further the provision and application of social rights within the employment context. This paper considers whether the entry into force of the Lisbon Treaty in 2009 which gives legal effect to the Charter of Fundamental Rights provides new hope in this respect. Discussion will focus on the relevance and potential of the Charter and assess the extent to which discrimination case law, which has effectively invoked the Charter, may be useful in protecting social rights in the wake

Crisis or Stasis in the Contract of Employment
Gwyneth Pitt
Professor of Law, Kingston University

Whether contracts of employment should be treated in the same way as other contracts, or whether a specifically labour law approach should be developed has been a subject of debate over the years. In this paper I seek to argue that overall the interests of workers are better served by applying normal canons of contract construction to employment contracts. Drawing on recent case law, I contend that this approach can be shown to be sufficiently flexible and sensitive to context to yield results which appropriately balance competing interests - although not always followed through sufficiently rigorously in practice. This theme will be explored in relation to three particular contractual issues: remedies for breach; incorporation and interpretation of terms, and sham contracts.