Labour/Employment Law — Overview

Discussion Group

These self-sustaining groups are an essential part of the life of our graduate school. They are organised in some cases by graduate students and in others by Faculty members and meet regularly during term, typically over a sandwich lunch, when one of the group presents work in progress or introduces a discussion of a particular issue or new case. They may also encompass guest speakers from the faculty and beyond.

Labour Law Discussion Group

Publications

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Journal Articles

2012

A Bogg and K D Ewing, 'A Muted Voice at Work? Collective Bargaining in the Supreme Court of Canada' (2012) Comparative Labor Law and Policy Journal (forthcoming)

A Bogg and T Novitz, 'Investigating \'Voice\' at Work' (2012) Comparative Labor Law and Policy Journal (forthcoming)

A Bogg, 'Michael Sandel and Trade Union Rights' (2012) International Union Rights (forthcoming)

A Bogg, 'The Death of Statutory Union Recognition in the United Kingdom' (2012) Journal of Industrial Relations (Australia) (forthcoming)

2011

A Bogg, 'Good Faith in the Contract of Employment: A Case of the English Reserve?' (2011) 32 Comparative Labor Law and Policy Journal 729

A theoretical analysis of the concept of good faith in the personal employment contract (approx 15,000 words)


S Fredman, The Public Sector Equality Duty (2011) 40 Industrial Law Journal 405

A key advance of the Equality Act 2010 is its introduction of a single equality duty. The new ‘public sector equality duty’ harmonises the earlier duties and extends its coverage to include other protected characteristics. In addition, the statutory aims have been deepened to reflect a substantive conception of equality. However, the core of the duty is unchanged. It is a duty to ‘have due regard’, not to take steps or to achieve equality. Is this an attempt to incorporate a deliberative, reflexive approach to achieving equality, recognising that a straightforward command and control approach might encounter unproductive resistance? Or does it reflect a fundamental ambivalence as to the importance of equality issues? Section 2 below examines the structure of the statutory provisions. Section 3 asks whether the statutory provision is an example of reflexive law. Particular attention is paid to the spate of judicial review cases relying on the equality duty to challenge a range of budget cuts. It is argued that courts have struggled to deal with the regulatory challenges presented by the equality duties. Nor is it clear that a reflexive approach is appropriate to achieve substantive equality.


ISBN: 1464-366

2010

A Bogg, 'Bournemouth University v Buckland: Re-establishing Orthodoxy at the Expense of Coherence?' (2010) Industrial Law Journal 408

A C L Davies, 'The Implementation of the Directive on Temporary Agency Work in the UK: A Missed Opportunity' (2010) 1 European Labour Law Journal 303

An analysis of the UK's implementation of the Temporary Agency Work Directive.


2009

A Bogg, 'New Labour, Trade Unions, and the Liberal State' (2009) 20 King's Law Journal 403

An analysis of liberal theory and its application in the context of trade union legislation, using this as an intepretive framework for analysing post-1997 legislative developments in collective labour law (12,500 words)


A Bogg, 'Of Holidays, Work and Humanisation: A Missed Opportunity?' (2009) European Law Review

An analysis of the humanisation principle in European working time regulation, and its specific regulatory effects (c 8,500 words)


A Bogg, 'The Mouse that Never Roared: Unfair Practices and Union Recognition' (2009) Industrial Law Journal

A critical analysis of the CAC's jurisprudence dealing with the new unfair practice jurisdiction under the Schedule A1 recognition procedure (6,500 words)


A C L Davies, 'Implementation of the Agency Work Directive in the UK' (2009) Revue de Droit du Travail 743

Discussion of the government's initial proposals for the implementation of the Temporary Agency Work Directive.


A C L Davies, 'Judicial Self-Restraint in Labour Law' (2009) 38 Industrial Law Journal 278

An exploration of the concept of 'deference' in the public law literature as applied to labour law cases.


A C L Davies, 'Sensible Thinking About Sham Transactions: Protectacoat Firthglow Ltd v Szilagyi' (2009) 38 Industrial Law Journal 318

Analysis of the development of the definition of 'sham' in the Protectacoat case, comparing it to the lease/licence case-law.


2008

A C L Davies, 'Developments in English Labour/Employment Law 2004-2007' (2008) 2 Europaische Zeitschrift fur Arbeitsrecht 267

A C L Davies, One step forward, two steps back? The Viking and Laval cases in the ECJ (2008) 37 Industrial Law Journal 126

S Fredman, 'Reforming equal pay laws' (2008) 37 Industrial Law Journal 193

Despite 33 years of equal pay legislation, the gender pay gap remains stubbornly high. Multiple equal pay claims in the public sector have forcefully exposed the weaknesses, both of the Equal Pay Act and of the complaints-led model of enforcement on which it is based. This article argues that the equal pay apparatus is in need of radical reform. Single Equality legislation, due to be introduced in the autumn, is the ideal forum to do so. Substantively, it is essential to move beyond the current narrow range of comparison, the limited definition of equality and the lack of a collective dimension. So far as enforcement is concerned, the way forward lies in a positive duty to eliminate pay discrimination, which builds on and strengthens the current gender duty. Women's right to equal pay for equal work is often represented as an unreasonable demand on resources, carrying with it an unsustainable cost. In fact, it is a fundamental right recognised by major human rights instruments and the International Labour Organization (ILO). It is to be hoped that the Single Equality Bill will give equal pay reform the serious attention so urgently needed.


2007

A C L Davies, The contract for intermittent employment (2007) 36 Industrial Law Journal 102

DOI: 10.1093/indlaw/dwl043

Elaborates on Mark Freedland's work on the contract for intermittent employment in his book, The Personal Employment Contract.


ISBN: 0305-9332

2006

A Bogg, 'The right to paid annual leave in the Court of Justice: the eclipse of functionalism' (2006) 31 European LR 892

Analysis of ECJ decision in Robinson-Steele, incorporating broader analytical perspective on the ECJ's interpretive approach under Working Time Directive (approx 8000 words)


ISBN: 03075400

A C L Davies, 'Regno Unito - Lavori Occasionali e Continuita dell'Impiego: Riflessioni sul Caso Cornwall CC v Prater' (2006) Diritto delle Relazioni Industriali 1264

Casenote on Cornwall CC v Prater, in Italian!


A C L Davies, The Right to Strike Versus Freedom of Establishment in EC Law: The Battle Commences (2006) 35 Industrial Law Journal 75

DOI: 10.1093/indlaw/dwj004

Commentary/extended casenote on Viking Line v ITF.


ISBN: 0305 9332

2004

S Fredman, Women at Work: The Broken Promise of Flexicurity (2004) 33 Industrial Law Journal 299

DOI: 10.1093/ilj/33.4.299

This article argues that it is no accident that the flexible workforce is largely made up of women in precarious jobs. The change in women's role, as both breadwinners and home-makers, has not been matched by changes in the legal structure of employyment law, and particularly the contract, with its assumption of bilateral, mutual, transactional exchange. Rights should be afforded to all who participate in the paid workshop, however marginally.


ISBN: 0305 9332

0

A C L Davies, 'Trade Union Recognition and Collective Bargaining in English Law' Europäische Zeitschrift für Arbeitsrecht 37

Text of a lecture delivered at the Siebtes Göttinger Forum zum Arbeitsrecht, Georg-August- Universität Göttingen


Books

2009

A Bogg, The Democratic Aspects of Trade Union Recognition (Hart 2009)

A C L Davies, Perspectives on Labour Law (2nd edn, Cambridge University Press, Law in Context Series 2009)

An exploration of human rights and economics perspectives on labour law.


ISBN: 978-0-521-72234-6

2007

P Davies and M Freedland, Towards a Flexible Labour Market (OUP: Oxford Monographs on Labour Law 2007)

Taking as its starting point the authors’ earlier work on Labour Legislation and Public Policy, this book provides a detailed account and critical analysis of British labour legislation and labour market regulation since the early 1990s. Referring back to the earlier history, and filling in the gaps in the early and mid-1990s, the work concentrates mainly on the legislation and policy measures in the employment sphere of the New Labour governments which have been in power since 1997, placing those developments in the context of the relevant aspects of European Community law. The work argues for an understanding of this body of legislation and regulatory activity as being directed towards the realisation of a flexible labour market, and shows how this objective has been pursued in three intersecting areas, those of regulating personal or individual employment relations, regulating collective representation, and promoting work. It explores the methods of regulation which have been used, developing a taxonomy of regulation and a notion of ‘light regulation’ to characterise some recent legislative interventions. It considers how far the administration of Prime Minister Tony Blair has fulfilled its promises or claims of ‘fairness at work’, ‘welfare to work’ and ‘success at work’. It is intended to be of interest to those concerned with the study of British and European labour or employment law, employee relations or human resource management, labour market economics, and contemporary politics.


ISBN: 978-0-19-921788-5

2004

S Fredman, The Ideology of New Labour Law (C Barnard, S Deakin and G Morris, Hart, 2004 2004)

A critical analysis of third way ideology in the field of labour law.


ISBN: 1-84113-404-X

Chapters

2012

A Bogg and T Novitz, 'Recognition in Respect of Bargaining in the United Kingdom: Collective Autonomy and Political Neutrality in Context' in B Creighton and A Forsyth (eds), Exploring Collective Bargaining (Routledge 2012)

2009

S Fredman, 'The Shape of Things to Come: Substantive Equality under the Spotlight ' in O. Dupper and C Garbers (eds), Equality in the Workplace: Reflections from South Africa and Beyond (Juta 2009)

2006

S Fredman, 'Precarious Norms for Precarious Workers' in J Fudge and R Owens (eds), Precarious Work, Women and the New Economy (Hart Publishing 2006)

The chapter assesses the legal position of precarious workers from a feminist perspective and in the light of the development of flexible working and New Labour and 'Third Way' policies


ISBN: 978-1-84113-616-6

2005

A C L Davies, 'Should the EU have the power to set minimum standards for collective labour rights in the Member States?' in P. Alston (ed), Labour Rights as Human Rights (Oxford University Press 2005)

This chapter in a volume of the Collected Courses of the Academy of European Law is based on a lecture series I gave at the European University Institute in Florence. It considers the EU's current role in the regulation of collective labour rights both internally and externally, and argues that the EU should have the power to set minimum standards for collective labour rights in the Member States.


ISBN: 0-19-928106-8

S Fredman, '‘Disability Equality: A Challenge to the Existing Anti-Discrimination Paradigm’' in A Lawson and C Gooding (eds), Disability Rights in Europe: From Theory to Practice (Hart 2005)

This chapter assesses existing discrimination paradigms and their applicability to disability discrimination.It argues that a possible way forward lies in a duty to promote equality based on social rights.


ISBN: 1-84113-486-4

2004

M R Freedland and C Kilpatrick, 'The United Kingdom; how is EU governance transformative?' in Comparative Analysis of Employment Policy and the Regulation of Part-time Work in the European Union (Cambridge University Press 2004)

The chapter on the United Kingdom in a volume of which the author is one of the editors,


ISBN: 0-521-84002-3

Case Notes

2010

A Bogg, 'Sham self-employment in the Court of Appeal' (2010) 126 Law Quarterly Review 166   [Case Note]

Analyses recent Court of Appeal developments on the concept of sham terms in personal employment contracts


2006

A C L Davies, Casual Workers and Continuity of Employment (2006) 35 Industrial Law Journal 196   [Case Note]

DOI: 10.1093/indlaw/dwl015

Casenote on Cornwall CC v Prater (CA)


ISBN: 0305 9332

Presentation/Conference contributions

2004

M R Freedland and PL Davies, 'The role of EU employment law and policy in the de-marginalisation of part-time work', paper presented at Cambridge University Press 63

An overview chapter in a volume of which the author is one of the editors, being a Comparative Analysis of Employment Policy and the Regulation of Part-time Work in the European Union.


ISBN: 0-521-84002-3

Courses

The courses we offer in this field are:

Undergraduate

FHS - Final Year (Phase III)

The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe). Phase II of the Final Honour School includes the first and second term of the final year; the Final Examinations are taken in the third term of the final year.

Labour Law

Issues in labour law affect most people during their working lives. What rights does a worker have if he or she is dismissed? Is there a right to strike? What can the law do about discrimination? This is a rapidly changing field, particularly in the past decade, which has witnessed a transformation in labour law. Most major industrial disputes are now fought out in the courts rather than on the shop-floor, in stark contrast with the traditional view that strikes are best resolved by the parties themselves. Of growing importance is the impact of EU law on British labour law, particularly in the field of discrimination. Labour law will be of considerable interest to anyone who is concerned with the interaction between law, politics and society. All British governments in recent decades have regarded policies on labour law as central to their political programmes.

Labour Law is also useful in practice. Many young barristers acquire invaluable experience by appearing before employment tribunals; and most solicitors’ firms, whether in the City or elsewhere, require specialists in employment law. It remains truer than ever that “the law governing labour relations is one of the centrally important branches of the law - the legal basis on which the very large majority of people earn their living. No-one should be qualified as a lawyer - professionally or academically - who has not mastered its principles.” (Kahn-Freund).

The course covers the law concerning individual employment law (including discrimination law), as well as trade unions, industrial action and collective bargaining. The student is not expected to acquire a detailed knowledge of the whole of this relatively large and complex field, but to pick out the central themes, and integrate them into a wider social and theoretical context.

Diploma in Legal Studies

Labour Law

Issues in labour law affect most people during their working lives. What rights does a worker have if he or she is dismissed? Is there a right to strike? What can the law do about discrimination? This is a rapidly changing field, particularly in the past decade, which has witnessed a transformation in labour law. Most major industrial disputes are now fought out in the courts rather than on the shop-floor, in stark contrast with the traditional view that strikes are best resolved by the parties themselves. Of growing importance is the impact of EU law on British labour law, particularly in the field of discrimination. Labour law will be of considerable interest to anyone who is concerned with the interaction between law, politics and society. All British governments in recent decades have regarded policies on labour law as central to their political programmes.

Labour Law is also useful in practice. Many young barristers acquire invaluable experience by appearing before employment tribunals; and most solicitors’ firms, whether in the City or elsewhere, require specialists in employment law. It remains truer than ever that “the law governing labour relations is one of the centrally important branches of the law - the legal basis on which the very large majority of people earn their living. No-one should be qualified as a lawyer - professionally or academically - who has not mastered its principles.” (Kahn-Freund).

The course covers the law concerning individual employment law (including discrimination law), as well as trade unions, industrial action and collective bargaining. The student is not expected to acquire a detailed knowledge of the whole of this relatively large and complex field, but to pick out the central themes, and integrate them into a wider social and theoretical context.

Postgraduate

BCL

International and European Employment Law

This course has the aim of providing a general understanding of international labour or employment law. For this purpose, the course compares and contrasts international labour standards with those of the EU, particularly by examining the interaction between the international labour standards which have been developed and maintained by the International Labour Organisation and those of the EU's laws and policies. Recent decades have witnessed a series of transformations of the aims of the European Union. The founding assumption in the Treaty of Rome that economic integration would naturally bring about social development has been abandoned. The Treaty of Amsterdam included a proper legal basis for EU employment law and strengthened and expanded EU equality law. The Treaty of Lisbon elevated the status of the EU Charter of Fundamental Rights, with its extensive social and labour rights content. Yet, the social dimension of the EU remains contested, and arguably subordinated, to policies designed to maximize the competitiveness and flexibility of the European labour market, in particular in order to create employment under the European Employment Strategy. Meanwhile, significant evolutions have also occurred in the policies and strategies of the ILO itself; and all these evolutions now have to respond to a growing sense of economic and social crisis which is both European and global. This course aims to develop a critical perspective whereby students can assess these developments against the background of international labour rights and labour standards, including those of the International Labour Organisation and the Council of Europe (both ECHR and European Social Charter and Revised European Social Charter). It will begin with an examination of the development of the roles of the ILO and the EU in employment law from a historical, theoretical and institutional perspective, and proceed to focus on particular rights and issues, most notably, the right to collective bargaining and action and strike; the right to participate in enterprise governance; the right to job security and ‘fair and just working conditions’; and the right to equality in employment across various grounds, in particular sex, race, age, disability, sexual orientation and religion. These rights will be studied in depth to illustrate the complex interplay between the EU and international norms, and between various forms and sources of protection.

MJur

International and European Employment Law

This course has the aim of providing a general understanding of international labour or employment law. For this purpose, the course compares and contrasts international labour standards with those of the EU, particularly by examining the interaction between the international labour standards which have been developed and maintained by the International Labour Organisation and those of the EU's laws and policies. Recent decades have witnessed a series of transformations of the aims of the European Union. The founding assumption in the Treaty of Rome that economic integration would naturally bring about social development has been abandoned. The Treaty of Amsterdam included a proper legal basis for EU employment law and strengthened and expanded EU equality law. The Treaty of Lisbon elevated the status of the EU Charter of Fundamental Rights, with its extensive social and labour rights content. Yet, the social dimension of the EU remains contested, and arguably subordinated, to policies designed to maximize the competitiveness and flexibility of the European labour market, in particular in order to create employment under the European Employment Strategy. Meanwhile, significant evolutions have also occurred in the policies and strategies of the ILO itself; and all these evolutions now have to respond to a growing sense of economic and social crisis which is both European and global. This course aims to develop a critical perspective whereby students can assess these developments against the background of international labour rights and labour standards, including those of the International Labour Organisation and the Council of Europe (both ECHR and European Social Charter and Revised European Social Charter). It will begin with an examination of the development of the roles of the ILO and the EU in employment law from a historical, theoretical and institutional perspective, and proceed to focus on particular rights and issues, most notably, the right to collective bargaining and action and strike; the right to participate in enterprise governance; the right to job security and ‘fair and just working conditions’; and the right to equality in employment across various grounds, in particular sex, race, age, disability, sexual orientation and religion. These rights will be studied in depth to illustrate the complex interplay between the EU and international norms, and between various forms and sources of protection.


People

Labour/Employment Law teaching is organized by a Subject Group convened by:

Mark Freedland: Professor of Employment Law

in conjunction with:

Alan Bogg: CUF Lecturer
Cathryn Costello: Fellow and Tutor in EU and Public Law
Anne Davies: Professor of Law and Public Policy
Sandra Fredman: Rhodes Professor of the Laws of the British Commonwealth and the United States


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