POLITICAL VALUES IN INDIVIDUAL EMPLOYMENT LAW
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01598.x |
| Date | 01 July 1980 |
| Published date | 01 July 1980 |
THE
MODERN LAW REVIEW
Volume
43
July
1980
No.
4
POLITICAL VALUES IN INDIVIDUAL
EMPLOYMENT LAW
IN
the last decade labour law has rarely been out of the political
headlines for long:
In
Place of Strife, the Industrial Relations Act,
Grunwicks are only the highlights. Political issues run very close
beneath the surface of collective labour law. Meanwhile, largely
immune from the political spotlight, the floor of rights’ has been
developing apace. Though particular issues-dismissal in
a
closed
shop, for instance-are still hotly debated, the basic structure of the
law seems generally acceptedYa in marked contrast to the use of law
in collective labour relations where not merely the policy of the law,
but its very presence in the area, is highly controversial. It is worth
asking why legal norms and legal regulation should have been
so
rapidly and
so
widely accepted in the individual employment relation-
ship, given the previous neglect of the law in this field. There are
many obvious defects in the use of law to regulate individual
employment: it
is
expensive, time-consuming, complex and remote.
One contributory factor to the success of the law in establishing
itself as an arbiter of individual employment disputes may be the
appearance of political neutrality it enjoys in this area,
as
opposed
to collective disputes; while to
off
set the disadvantages listed above,
the great advantage of the law
is
that it offers impartial, uniform and
external adjudication. The law
will
lay down a reasonable standard:
if dispute procedures fail, the law will settle the issue finally and, it
is
claimed, fairly.
It is the purpose of this paper to argue that individual employment
law
is
every bit as political as its collective counterpart; that the
notions of fairness and reasonableness used in applying the new
floor of rights legislation, and the claim of the law to be impartial,
can only be understood within the context of
a
particular set of
1
Redundancy Payments Act 1965; Contracts of Employment Act 1972; Trade
Union and Labour Relations Act 1974, Sched. 1; Employment Protection Act 1975,
Pt.
11,
now
conveniently collected
in
the
Employment Protection (Consolidation) Act
1978.
2
Even
in
the Government’s new Employment
Bill
(1979), the proposals are
essentially concerned to restrict access to the
floor
of rights (either by excluding
certain classes
of
employees, or
by
exempting particular categories of employer).
rather than to redraft the rights substantially.
361
VOL.
43
(4)
1
362
THE
MODERN
LAW
REVIEW
[Vol.
43
political values and political assumptions-assumptions about, for
instance, the distribution of power in industrial relations, the respec-
tive rights of capital and labour, the validity of managerial objec-
tives. The framework adopted for this political analysis-using
unitary, pluralist and radical frames
of
reference ‘4s one developed
in industrial sociology and applied in the theory of industrial rela-
tions. Indeed, the close convergence between the values of the floor
of rights and a pluralist frame
of
reference-the currently prevailing
orthodoxy in industrial relations theory-may in part account for
the surprising success with which the law has established itself in
this field.
The paper starts with an analysis
of
the political values embodied
in the common law contract
of
employment. This
is
not merely
of
historical interest, for although the statutes which enact t’he floor of
rights appear to set up
a
completely new jurisprudential basis for the
law, the approach of the courts
is
frequently conditioned
by
similar attitudes and values to those behind the contract
of
employ-
ment. The result is to deprive employees in some crucial areas of
the protection the floor of rights would appear to give them. The
floor is built
on
old foundations: the changes it introduces are not
as radical or
as
far
reaching
as
they appear.
I.
OLD
FOUNDATIONS:
THE
CONTRACT
OF
EMPLOYMENT
The failure of the common law to develop an adequate treatment of
the contract of employment suitable for modem industrial conditions
can be explained at various levels. The expense and remoteness
of
the law discouraged employees from litigation; the experience
of
trade unions at the hands of the law persuaded them to seek their
own
remedies through collective bargaining. The individualism of
the common law insisted
on
treating the employment contract as
freely negotiated between individuals of equal standing--“ an
individualism which necessarily ignores the economic reality behind
the bargain.” The artificiality of the common law’s approach to
employment problems is well illustrated by the decision of the House
of Lords in
Lister
v.
Romford
Ice
‘:
could an employer’s insurance
company, who had paid compensation to someone injured by
a
negligent employee, recover the money from the employee? The
case revolved
on
whether a term could be implied in the employee’s
contract that he could claim the benefit of his employer’s insurance
policy. Holding that he could not, and
so
must reimburse the
insurance company, the Lords effectively put the burden
on
employees in
a
similar position of either expressly contracting to
cover the point when taken
on,
or else taking out an insurance policy
of their own, in addition to that already compulsorily held by the
employer under the Road Traffic Act. The unacceptable nature
of
9
These terms
are
explained
at
some
length
in
section
11,
below,
p.
367.
4
K.
W. Wedderburn,
The
Worker
and
the
Law
(2nd ed.),
p.
77.
6
C19571
A.C.
555.
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