The Employment Contract: From Collective Procedures to Individual Rights
| Author | William Brown,Simon Deakin,Sarah Oxenbridge,David Nash |
| DOI | http://doi.org/10.1111/1467-8543.00182 |
| Date | 01 December 2000 |
| Published date | 01 December 2000 |
The Employment Contract : From
Collective Procedures to Individual Rights
William Brown, Simon Deakin, David Nash and
Sarah Oxenbridge
Abstract
The article analyses the institutional basis and form of the employment
contract in Britain using the 1998 Workplace Employee Relations Survey.
It assesses the extent to which collective bargaining still regulates pay and
non-pay aspects of employment. While collective procedures have declined in
importance, there has been an increase in legal governance of the employment
relationship. Logistic regression analysis establishes that both contractual
formalization and legal compliance are greater in larger organizations and
where trade unions are present. Trade union activity is also associated with
superior fringe benefits. Collective bargaining thus appears to facilitate both
access to and improvement on statutory rights.
1. Introduction
The employment contract has received remarkably little attention in the
British industrial relations literature. The explanation may lie in the
distinctive evolution of British labour law. For most of the past century,
collective bargaining has been the principal mode of governance of the
employment relationship. The `normative' terms of collective agreements,
such as pay, hours of work and other employment-related benefits, were, in
principle, incorporated by reference into contracts of employment, and
hence were legally enfo rceable by individual empl oyees. In practice,
however, under the influence of the `collective laissez faire' philosophy,
opportunities for individual enforcement of contractual rights were few and
far between. Most disputes over pay and conditions were settled through
collective procedures from which the courts were, on the whole, excluded.
Moreover, individual employees had few statutory rights until relatively
William Brown and Sarah Oxenbridge are in the Department of Applied Economics, Simon
Deakin is in the ESRC Centre for Business Research, and David Nash is in the Judge Institute
of Management Studies, all at the University of Cambridge.
British Journal of Industrial Relations
38:4 December 2000 0007±1080 pp. 611±629
#Blackwell Publishers Ltd/London School of Economics 2000. Published by Blackwell Publishers Ltd,
108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
recently. As a result, the place of the individual employment relationship
within the industrial relations system was marginal. Its role was eclipsed by
Britain's peculiarly informal, unregulated, multi-layered and fluid system of
collective bargaining.
From the early 1960s, this began to change. Successive governments took
the initiative in enacting statutory rights which were enforceable by indi-
vidual employees before specialized labour courts, the industrial tribunals
(now renamed employment tribunals). Beginning with the Contracts of
Employment Act 1963, employees acquired statutory protection in a range
of areas relating to the termination of employment and protection of wages.
This was followed by the recognition of rights to protection against dis-
crimination in relation to sex, race and disability. Alongside the enactment
of these statutory rights, a new process was developing which was little
noticed at first outside legal circles, but has come to acquire increasing
significance. This was the growing legal formalization of employees' con-
tractual terms and conditions. These are the terms incorporated into their
contracts principally from collective agreements but also from sources such
as employer handbooks. The principal catalyst of formalization was the
requirement, dating from the 1963 Act and later extended by a European
Directive of 1991,
1
that employers should provide employees with a written
statement of their particulars of employment.
The 1998 Workplace Employee Relations Survey (WERS98) provides an
opportunity to reassess both the place of the contract of employment within
British industrial relations and the complementary issue of the method by
which it is established. In this article we draw on the survey to investigate
the nature of the individual employment contract in 1998, having first
established the extent to which it is influenced by collective processes.
WERS98 came at a time when the system of collective bargaining was in
retreat. During the previous two decades the membership of trade unions
and the coverage of collective bargaining had contracted substantially,
battered by competitive, legal and structural change. The proportion of
employees covered by either bargained or statutory collective arrangements
more than halved, from 83 per cent in 1980 to 35 per cent in 1998 (Cully and
Woodland 1999; Milner 1995). As part of this process, employers increas-
ingly took the initiative in fixing unilaterally those matters concerning pay,
conditions and working arrangements that hitherto had been the subject
of joint regulation. This was sometimes accompanied by the explicit de-
recognition of trade unions, but more often by an incremental reduction
in the depth of recognition and an accompanying diminution of union
influence over the terms of the contract of employment (Brown et al. 1998:
ch. 9).
This reduction in the procedural role of trade unions in determining the
content of employment contracts has been called `individualization' in the
industrial relations literature (Deery and Mitchell 1999), and one intention
of this analysis is to map its current extent and character. The authors, as
part of an earlier study of the changing nature of employment contracts,
612 British Journal of Industrial Relations
#Blackwell Publishers Ltd/London School of Economics 2000.
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