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The law in the United Kingdom concerning industrial disputes represents a complex statutory mesh overlaying principles established at common law; Most critics agree that “no serious attempt to dismantle the legislative constraints on industrial action progressively introduced under Conservative Governments”# has been made by the current government, and that the complexity of the law remains. This intricate mix has been singled out for particular criticism by both domestic and international organisations, with accusations that the UK is in breach of the obligations in agreements like the European Social Charter. ... In the context of trade union law, this definition is somewhat fraught, since the term “employer” is currently defined narrowly. ... In other words, the definition of employer in industrial disputes is likely to be a narrow one, at least when referring to trade union legislation (as it is, for instance, in the case of unfair dismissal, regulated by ss237 – 239, TULR(C)A 1992. ...
Trade Unions – trade unions are traditionally seen as the enemy of the employer, because of their role as the defender of the rights of the employee. ...
None of these interests is protected by a discrete area of legislation; instead the interplay and balance struck between the different parties’ interests is seen in areas of law such as unfair dismissal, the right to organise action, and picketing. Examining these areas allows for an assessment of the relative complexity of the law, the identification of “pitfalls and ambiguities”.
History
Before turning to a specific examination of the current law in each of these areas, it is vital to understand the historical context of trade union law, since this context is fundamental to an understanding of the functioning of today’s trade union legislation. In particular, industrial action has never been lawful in the UK; instead, immunity from legal liability has been granted. A strike, for instance has two consequences: for the individual, it represents a breach of employment contract, and for the union, organising industrial action represents an inducement to breach of contract. ... Or should this bit be put in unfair dismissal******
good area to study because so full of complexity
also vital in day to day for employers because can cost so much
Unfair dismissal represents a discrete area of employment law in itself, involving the consideration of four fundamental questions:-
Is the applicant an employee? ... for official industrial action):-
[…]where at the date of the dismissal –
the employer was conducting or instituting a lock-out
the complainant was taking part in a strike or other industrial action
In such as case an [employment tribunal] shall not determine whether the dismissal is fair or unfair unless it is shown –
that one or more relevant employees of the same employer have not been dismissed, or
that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement
For this purpose, “relevant employees” means means –
in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and
in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works at the date of his dismissal were taking part in the action
ss 237 - 238 appear at first glance relatively simple. First created by the 1974 Act, and amended by the Employment Act 1982 to allow selective re-hiring after 3 months (s238), these would appear to be simple general principle – except in the circumstances specified, an employer may dismiss his entire workforce. ... Debate and controversy in case law surrounding this provision, however, suggest that the legal reality is far more complex. ... The EAT said in this case that the question of whether employees were taking part in a strike at the “time of dismissal” was one of fact for the employment tribunal, in effect this creates a great deal of uncertainty. ... The principal exception, s238A, was introduced by the Employment Relations Act 1999.
Approximate Word count = 3672
Approximate Pages = 14.7
(250 words per page double spaced)
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