The Employment Act 1990 in Context
| Date | 01 May 1991 |
| Published date | 01 May 1991 |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00894.x |
| Author | Bob Simpson |
LEGISLATION
The Employment Act
1990
in Context
Bob
Simpson*
The changes
in
British labour law initiated by the Conservative Government first
elected
in
1979
have been consistently promoted as an integral and important part
of the Government’s economic strategy. Widely differing views have been
expressed on the actual impact of these changes on the performance of the British
economy. These range from the rather simplistic official claims for their beneficial
impact to analyses which are sceptical of
any
significant positive effects.* What is
indisputable is the revolutionary effect of the legislation of the last decade on the
overall appearance and substantive content of collective labour law
in
Britain. The
legal dimension of the fundamental social rights of organised labour
-
the right
to organise, the right to bargain and the right to strike
-
has been transformed.
The Employment Act
1990
(EA
1990)
provides a convenient point from which
to view a decade of new laws and identify
the
different strands of policy underlying
a sequence of legislation that has frequently amended recently enacted provisions
on the ostensible ground that the experience of a few months has made clear the
need for further modification. The main provisions of this Act concern freedom
of association and the right to strike.
It
also
makes some amendment to the law
on trade union government and administration.’
Freedom
of
Association and the Right to Organise
Section
1
of
EA
1990
makes
it
unlawful to refuse a person employment because
of
his or her membership or non-membership of a trade union.4 This has implica-
tions for both the ‘positive’ and ‘negative’ aspects
of
freedom of association.
*London School of Economics.
I
See
eg
Cotrser.vci/ive
Motiifesto
1979
(London: Conservative Party, 1979)
p
6
er
sey
and Mr Howard,
Secretary
of
State for Employment
in
the Second Reading Debate on the Employrnent
Bill
1990, HC
Deb vol
166,
col 39, 29 January
1990.
2 Contrast the rhetoric
of
paras
1,
I
-
I
.7 of the Green Paper,
Rettiovitig Bwier.s
to
Ettip/oyt~ie~it
Cm 665
(London: HMSO,
1989)
(referred to below
as
the March 1989 Green Paper) with
W
Brown and
S
Wadhwani, ‘The economic effects of industrial relations legislation since 1979,’
Notiotial Itrs/ific/e
Ecotiotnic Review,
February 1990, p 57.
3 In addition, the Act makes an important amendment to the law on codes of practice.
s
I2
enables
them to be revised
in
order to bring them ‘into conformity
with
subsequent statutory provisions’ without
going through the consultation process which normally precedes the introduction and revision of codes.
The Act
also
merges the Redundancy Fund
with
the National Insurance Fund,
with
effect from
I
February 1991
(s
13) and amends the law on work experience For children
(s
14).
ss
12-14
are
not considered here.
All
the provisions discussed
in
the text cum into effect on
I
January 1991,
see
SI
1990 No 2378.
4
s
I(
])(a).
s
1(
I)(b) extends this to include refusal
of
employment because
a
person
is
unwilling
(i)
to
beconie or cease to be a member, or
(ii)
to make payments
in
lieu of membership, the latter covering
the relatively rare ‘agency shop’ arrangements
in
which non-members are required to make
a
payment
in
lieu
of
membership either to thc union or a third party.
418
The
Moclcr.tr
Lrrw
Review
54:3 May 1991 0026-7961
May
19911
nie
Employment
Act
I990
The
Positive
Right
Before
197
I
there was virtually no British law on either the individual right of freedom
of
association in relation to trade unions or the collective right of trade unions to
organise. Section
5
of the Industrial Relations Act
1971
(IRA) established rights
for individual workers
to
belong
to
and take part in the activities of trade unions
which registered under the Act, which in practice most unions did not. By contrast
the parallel right not
to
belong extended
to
any organisation of workers, whether
or not registered as a trade union under the Act. The ‘Social Contract’ legislation
of
1974-76
re-established an individual right to belong
to
and take part in the
activities of a trade union, this time subject to the qualification that the union was
inde~endent.~ It also established for the first time rights for lay officials of inde-
pendent trade unions which were recognised for collective bargaining purposes to
reasonable paid time off for industrial relations and related training duties, and for
members of independent recognised unions to reasonable unpaid time off to take
part in union activities.6 These rights were re-enacted in the Employment Protec-
tion (Consolidation) Act
1978
(EPCA). They remained formally unamended until
February
1990
when section
14
of the Employment Act
1989
cut back the time
off right for lay officials to effectively little more than a right to paid time off only
when the employer is prepared
to
agree
to
it.7 In the light
of
research evidence that
this part
of
the Social Contract legislation had a real impact on trade unions’ workplace
organisation,* this may prove to be one
of
the more important of the
1980s
amendments to the law.
EA
1990
s
1
appears
to
be a move in the opposite direction since for the first
timc since the repeal
of
the
IRA
in
1974,
the law now proscribcs discrimination
by employcrs against job applicants because they are union members. It is, however,
unlikely that this will have much impact
on
actual discrimination against union
members at the point of re~ruitment.~ The real discrimination against trade
unionists in recruitment
is
against activists, but section
1
does not cover a refusal
to
employ because of an applicant’s trade union
activities
as distinct from
member-
ship.
It would, therefore, have made no difference to the well known case of
Birminghum
DC
v
Beyer’O
where the reality was that Beyer could not get a job as
a construction worker in the Birmingham area because he was blacklisted by
employers for his union activities.
The Government resisted amendments to extend section
I
to encompass these
realities. Ministers argued that tribunals would
see
through spurious claims by
employers
to
have refused employment not because of an applicant’s union member-
ship, but on the grounds
of
past union activities. But they also defended the right
of employers
to
refuse to employ ‘troublemakers.
’
The Government was therefore
unwilling to support any steps to cither make the practice of blacklisting as such
~
5
Trade Union
and
Labour Rclations Act 1974 (TULRA) Sch
I
para
6(4) and Eriiploytncnt Protection
Act 1975 (EPA)
s
53
which respectively made dismissal for these reasons autoniatically unfair and
ccrtain action short
of
dismissal unlawful. See now EPCA
ss
58(
I)@) and
(b)
and
23(
I)@)
and
(b).
On
thc meaning
of
‘indcpendcnt’ trade union see TULRA
s
30(
I).
6
EPA
ss
57
and
58,
now
EPCA
ss
27
and
28.
7 See
S
Dcakin, ‘Equality under
a
niarkct ordcr: The Etiiploytiicnt Aci
1990’ (1990) 19
IW
I.
16-17.
8
See
W
Daniel and
N
Millward,
Wwkpltrce
frrdrrstiirrl
Relntioris
irr
Biitnirr:
77ie
DEIPSf/SSRC
Siwvey
(I
.ondon:
Hei ticniann,
1983)
37
-39,
I42
-
144.
9
This part
of
s
1
WIIS
only includcd
for
thc sake
of
purely formal equality.
It
was conspicuously absent
from cliaptcr
2
of
thc March
1989
Green Paper,
up
ci/
n
2. Its inclusion may indicate that the Governnicnt
took
some
notice
of
ihe
EC’s
Social
C/ini/ci
(see
n
104
below) art
1
I.
10
119771 IRLR 210 EAT.
419
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