Research Methodologies in EU and International Law

by Hervey, Tamara; Cryer, Robert; Sokhi-Bulley, Bal; Bohm, Ali

• ISBN13: 9781841132358
• ISBN10: 1841132357
• Format: Paperback
• Copyright: 2011-04-11
• Publisher: Hart Publishing

Summary

"The second edition of this book examines the law relating to employment industrial relations, and labour market regulation in the United Kingdom, including relevant dimensions of EC law and policy."--BOOK JACKET.

Author Biography

Aileen McColgan is Professor of Human Rights Law at King's College, London.

Table of Contents

Table of Cases	p. xix
Table of Legislation	p. xxxv
Introduction to Labour Law
What is labour law?	p. 1
Methods of regulation	p. 9
Regulatory standards with criminal sanctions	p. 9
Individual civil law rights	p. 11
Collective bargaining	p. 12
Effectiveness of labour law	p. 14
The role of the State	p. 16
Labour courts and dispute settlement	p. 17
Sources of conflict	p. 18
Alternative dispute resolution	p. 22
The ordinary courts	p. 27
Transnational regulation	p. 29
International protection of human rights	p. 31
International protection of social and economic rights	p. 31
Transnational labour market regulation	p. 38
Prospects for labour law	p. 46
Flexible forms of work	p. 46
Economic objectives of legal regulation	p. 48
Social exclusion	p. 53
Worker participation	p. 56
Citizenship	p. 58
Conclusion	p. 59
The Employment Relation
The contract of employment	p. 63
Freedom of contract	p. 63
The standard model of employment	p. 65
The legal institution of the contract of employment	p. 68
The wage-work bargain	p. 69
Deductions for incomplete and unsatisfactory work	p. 71
Unavailability of work	p. 80
Enforced idleness	p. 83
Conclusion	p. 87
The organisational framework	p. 88
Collective agreements	p. 95
Legal enforceability	p. 96
Incorporation	p. 96
Enforcement by employees	p. 98
Enforcement by employers	p. 102
Conclusion	p. 104
Authority and co-operation	p. 104
The legal construction of hierarchy	p. 104
Mutual trust and confidence	p. 108
Co-operation and good faith	p. 118
Conclusion	p. 119
Information	p. 120
Dissemination of false or misleading information	p. 121
Disclosure of terms of employment	p. 127
Risk assessment	p. 139
Disclosure of business plans for collective negotiations	p. 140
Confidential information	p. 141
Conclusion	p. 146
The scope of employment regulation	p. 147
Classification of contractual relations	p. 149
Flexibility and atypical workers	p. 160
Proper scope of regulation	p. 165
Limits to flexibility	p. 180
Public sector workers and public law	p. 183
The approximation of public and private sectors	p. 185
The retreat of public law	p. 186
Government by contract	p. 193
The adequacy of the contractual framework for employment	p. 197
Equality of Opportunity
Introduction	p. 203
Prohibited grounds of discrimination	p. 214
The SDA and the EqPA	p. 214
The RRA	p. 223
The DDA	p. 239
Direct discrimination	p. 245
Direct discrimination	p. 246
Victimisation	p. 269
Indirect discrimination	p. 275
Requirement or condition	p. 277
Considerably smaller proportion	p. 281
Can comply	p. 287
'Indirect discrimination' and the Disability Discrimination Act	p. 288
Justifying discrimination	p. 297
The general justification defence	p. 297
Justification under the DDA	p. 307
GOQs and other exceptions to the prohibitions on discrimination	p. 309
Positive discrimination	p. 324
Prohibited discrimination	p. 329
Sex discrimination in pay and contractual terms--The EqPA	p. 339
Selecting a comparator	p. 342
Sex discrimination in pay: the EQpA and the genuine material factor defence	p. 347
Procedural and related issues	p. 357
Proving discrimination	p. 357
Time limits	p. 362
Remedies	p. 364
Protecting the Work/Life Balance
The regulation of working time	p. 371
The Working Time Regulations 1998 (SI 1998: No 1833)	p. 374
'Working Time'	p. 377
Enforcement of the Working Time Regulations	p. 379
Coverage of the Working Time Regulations	p. 383
Derogations and exceptions to the Working Time Regulations	p. 387
Individual 'opt-outs'	p. 403
Collective 'opt-outs'	p. 407
Impact of the Working Time Regulations	p. 411
Part-time workers	p. 413
The Part-Time Workers Directive	p. 419
The Part-Time Workers Regulations 2000	p. 421
Impact of the Regulations	p. 424
Time-off rights	p. 426
Maternity rights	p. 426
Statutory maternity leave	p. 428
Rights during maternity leave	p. 430
Return from maternity leave	p. 435
Parental leave	p. 437
Evaluating parental leave	p. 446
Emergency leave	p. 448
Minimum Wage regulation	p. 453
The National Minimum Wage	p. 457
Coverage	p. 457
'Pay'	p. 458
Hours	p. 459
Enforcement	p. 461
Impact of the National Minimum Wage	p. 462
Working Family Tax Credits	p. 466
Conclusion	p. 472
Dismissal
The common law of wrongful dismissal	p. 481
Compensation for wrongful dismissal	p. 483
Injunctions and declarations	p. 507
The revival of the common law	p. 519
Statutory concept of dismissal	p. 520
Dismissal or resignation?	p. 522
Constructive dismissal	p. 526
Frustration	p. 535
Contracting out of statutory rights	p. 540
Agreed termination and compromise agreements	p. 541
Employment	p. 546
Temporary and probationary employees	p. 548
Retirement	p. 554
The arbitration alternative	p. 557
Conclusion	p. 558
Fairness of dismissal	p. 560
The structure of the fairness enquiry	p. 560
The range or band of reasonable responses test	p. 565
Procedural fairness	p. 575
Substantive fairness	p. 582
Remedies for unfair dismissal	p. 586
Compliance and corrective justice	p. 586
Reinstatement	p. 587
Compensation	p. 592
Conciliation and settlements	p. 603
Rights and reasonableness	p. 605
Human Rights and Labour Law
The European Convention on Human Rights	p. 611
Introduction to the Human Rights Act 1998	p. 613
The Human Rights Act and employment--the public/private divide	p. 616
Political activities and the Human Rights Act	p. 618
'Purge and positive vetting'	p. 619
Statutory restrictions on public sector workers	p. 623
Other forms of 'political' discrimination/restrictions	p. 626
Political restrictions/discrimination and the European Convention	p. 628
The application of the Convention rights to employment	p. 651
Workplace surveillance and the Human Rights Act	p. 658
The Regulation of Investigatory Powers Act 2000	p. 666
The Data Protection Act 1998	p. 669
The data protection principles	p. 672
Enforcement of the data protection principles	p. 675
The DPA 1998 and protection against workplace surveillance	p. 680
Workplace surveillance and the European Convention	p. 687
Workplace surveillance and the Human Rights Act	p. 692
Whistleblowing: freedom of expression in the workplace?	p. 694
The Public Interest Disclosure Act	p. 695
Whistleblowing and the European Convention	p. 698
Whistleblowing and the Official Secrets Act--the application of the Human Rights Act	p. 699
Trade Unions and Their Members
Trade unions and citizenship	p. 705
What are trade unions?	p. 707
Trade union objects: A source of restraint	p. 708
Trade union political objects: statutory restraints	p. 712
Trade union structure and government	p. 716
Constitutional constraints	p. 716
Constitutional conflicts	p. 720
The election of trade union officers	p. 722
The statutory procedures	p. 723
The continuing role of the common law	p. 728
Trade union members' rights	p. 736
The right to information	p. 737
The right not to strike	p. 738
The right not to be excluded from membership	p. 742
Disciplinary and expulsion procedures	p. 746
Disciplinary powers	p. 746
Disciplinary procedures	p. 747
Disciplinary decisions	p. 752
The adjudication of disputes	p. 757
The role of external review	p. 758
The role of the Certification Officer	p. 759
The role of the courts	p. 761
Conclusion	p. 768
The changing direction of public policy	p. 768
The changing nature of trade unionism?	p. 770
Worker Representation and Trade Union Recognition
Trade unions and collective bargaining	p. 773
Changing public policy responses	p. 773
Changing patterns of workplace representation	p. 776
Trade union membership and activities	p. 779
Access to employment	p. 780
Trade union membership and activities	p. 784
Trade union representation and the right to be accompanied	p. 803
Trade union 'membership' and trade union representation	p. 803
Trade union representation and the right to be accompanied	p. 805
The rights and responsibilities of trade unions	p. 808
Trade union recognition and collective bargaining	p. 809
Trade union recognition: voluntary agreements	p. 809
Trade union recognition: the statutory procedure	p. 818
Rights of recognised trade unions	p. 838
The meaning of recognition	p. 839
Time off for trade union duties and activities	p. 841
Disclosure of information	p. 850
Trade union consultation rights	p. 859
Other forms of workplace representation	p. 868
Staff associations: a rival to trade unionism	p. 869
Consulting employee representatives	p. 871
Workplace representation: future prospects	p. 876
Industrial Conflict and the Right to Strike
A fundamental right	p. 881
The function of industrial action	p. 881
Legal perceptions and legal challenges	p. 884
The declining prevalance of strikes and industrial action	p. 885
The basis of legal liability	p. 886
The boundaries of liability	p. 887
Extending the boundaries of liability	p. 888
The expanded basis of liability	p. 891
Statutory immunity: where are we now?	p. 895
Trade dispute: defining the legitimate boundaries of trade union action	p. 896
Social and political questions	p. 897
The right to strike and the changing public sector	p. 901
Restricting the boundaries of industrial action: secondary action and other restraints	p. 904
Liability and immunity	p. 906
Withdrawal of immunity	p. 908
International solidarity action	p. 912
Procedural restraints: ballots and notices	p. 914
The statutory duty	p. 916
Notice to the employer	p. 916
Separate workplace ballots	p. 917
Entitlement to vote, the voting paper and the conduct of the ballot	p. 918
After the ballot: calling the industrial action	p. 919
Notice of industrial action	p. 921
Suspending the industrial action: a need for a fresh ballot?	p. 923
A case for further reform?	p. 924
Picketing and demonstrations: reconciling conflicting Freedoms	p. 925
Statutory protection	p. 925
The Code of Practice	p. 927
The scope of statutory protection: location and purpose	p. 929
Liability for picketing outside the scope of statutory protection	p. 931
Consumer picketing	p. 935
Remedies and liability: injunctions, contempt and damages	p. 937
Injunctions	p. 937
Contempt of court	p. 941
Damages	p. 944
Sanctions against strikers: protected and unprotected action	p. 949
Unfair dismissal: before the Employment Relations Act 1999	p. 950
Employment Relations Act 1999: protected industrial action	p. 953
Unprotected industrial action	p. 956
Industrial disputes and the role of the state	p. 960
Strategies of dispute resolution	p. 960
Strategies of coercion	p. 967
Conclusion	p. 973
Restructuring the Business
Variation of jobs	p. 984
Flexibility under the contract of employment	p. 984
Variation by collective agreement	p. 997
Short-time working and employment subsidies	p. 1000
Workforce reductions	p. 1002
The concept of redundancy	p. 1005
Some other substantial reason	p. 1016
Fairness of selection for redundancy	p. 1019
Redeployment	p. 1024
Offer of alternative employment	p. 1025
Failure to consider redeployment	p. 1027
A positive duty?	p. 1028
Insolvency	p. 1029
Protection of wages	p. 1030
Corporate rescue	p. 1034
Sales of the business	p. 1036
Dismissals before the sale	p. 1038
Dismissals after the sale	p. 1044
Variations of terms by the transferee	p. 1045
Outsourcing	p. 1050
Worker participation	p. 1056
Individual consultation	p. 1058
Mass dismissals	p. 1059
Sales of the business	p. 1061
Conformity to collective agreements	p. 1063
Conclusion	p. 1066
Controlling capital	p. 1067
Index	p. 1071
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