The unorganised worker: The decline in collectivism and new hurdles to individual employment rights

Industrial Law Journal

Volumn 34, Issue 3, 2005, Pages 217-238

  Pollert, Anna ^a  

^a LONDON METROPOLITAN UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 24044486270     PISSN: 03059332     EISSN: None     Source Type: Journal    
DOI: 10.1093/indlaw/dwi016     Document Type: Review

References (152)

1. See W. Brown, S. Deakin, D. Nash and S. Oxenbridge 'The Employment Contract: From Collective Procedures to Individual Rights', (2000) 38 British Journal of Industrial Relations 611.
2. This refers to workplaces employing over 25 employees; M. Cully, S. Woodland, A. O'Reilly and G. Dix, Britain at Work as Depicted by the 1998 Workplace Employee Relations Survey (London: Routledge, 1999) p 242 (referred to below as WERS 98).
3. 3 figures are Employment Market Analysis and Research, Trade Union Membership 2003 (London: DTI, July 2004), Tables 5 and 25.
4. W. Brown, S. Deakin, M. Hudson, C. Pratten, and P. Ryan, 'The Individualisation of Employment Contracts in Britain', Employment Relations Research Series 4 (London: DTI, 1999).
5. Information and Consultation of Employees Regulations 2004, SI 2004/ 3426, in force 6.4.05.
6. For background to and company case studies of non-unionism see T. Dundon and D. Rollinson, Employment Relations in Non-Union Firms (London: Routledge, 2004).
7. W. Brown, 'The Future of Collectivism in the Regulation of Industrial Relations' (2004) 2 Human Resources and Employment Review 4 at 200.
8. National Minimum Wage Act 1998 (c 39);
9. The Working Time Regulations 1998 SI 1998/1833;
10. Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 SI/1551;
11. The Maternity and Parental Leave etc Regulations 1999 SI 1999/3312 and 2002 amendment SI 2002/2789;
12. The Paternity and Adoption Regulations 2002, SI 2002/2788.
13. Employment Act 2002, 2002 Chapter 22.
14. The Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/ 3207) and the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002.3236). Both commenced 6.4.03.
15. See P. Smith and G. Morton, 'New Labour's Reform of Britain's Employment Law: The Devil is Not Only in the Detail but in the Values and Policy Too' (2001) 30 BJIR 123.
16. On the 1998 Working Time Regulations, SI 1998/1833, C. Barnard 'The Working Time Regulations 1998' (1999) 28 ILJ 75 discusses the 'UK policy of copy out (or cop out)' of the Working Time Directive 93/104/EC,
17. and on Working Time Regulations 1999, SI 1999/3372, the amendment further easing the individual opt-out, C. Barnard 'The Working Time Regulations 1999' (2000) 29 ILJ 167. The Fixed Term Worker Directive (99/ 70/EC) applies to all workers, but the UK government implemented it as the Fixed Term Employees (Prevention of less Favourable Treatment) Regulations 2002, SI 2002/3034, commencing 6.4.02.
18. D. Gallie, M. White, Y. Cheng and M. Tomlinson, Restructuring the Employment Relationship (Oxford: Oxford University Press, 1998) p 107.
19. On the decline in industrial action, see Cully et al, op cit, 1999 (WERS 98) p 245.
20. Also, A. Bryson and D. Wilkinson, Collective Bargaining and Workplace Performance: An Investigation Using the Workplace Employee Relations Survey 1998, Employment Relations Research Series 12 (London: DTI, 2001) p 1.
21. The 2000-01 peak was partly due to 12,000 part-time worker pension cases under the Sex Discrimination jurisdiction. For 2002 see ETS Report and Accounts, 2002-03. On ET workload, Findings from the Survey of Employment Tribunal Applications 2003, Employment Relations Series 33 (London: DTI, 2004) p 7 and on impact of 2003 new anti-discrimination legislation on religion or belief and sexual orientation, ETS Annual Report 2003-04, p 2.
22. See Cully et al, op cit, 1999 (WERS 98) p 129, and Routes to Resolution: Improving Dispute Resolution in Britain (London: DTI, July 2001) para 1.4.
23. See H. Genn, Paths to Justice: What People Do and Think About Going to the Law (Oxford and Portland, Oregon: Hart, 1999).
24. N. Meager, C. Tyers, S. Perryman, J. Rick and R. Willison, 'Awareness, Knowledge and Exercise of Individual Employment Rights. Employment Relations Research Series 15 (London: DTI, 2002) p 190.
25. The survey is part of the author's ESRC project, 'The Unorganised Worker: Routes to Support, Views on Representation'. The 'unorganised' comprise the non-unionised and union members in workplaces without union recognition or collective bargaining coverage.
26. Citizens Advice Annual Report 2003/04 (London: Citizens Advice Bureau, 2004) p 13 and Acas Annual Report, 2004.
27. Routes to Resolution, op cit (London: DTI, 2001) para 1.6, 1.7
28. The Task Force is a Cabinet Office appointed private sector body drawn from the private sector. See http://www.brtf.gov.uk/pressreleases/2004/appoint.asp.
29. S. McKay 'Shifting the Focus from Tribunals to the Workplace' (2001)30 ILJ 332.
30. Routes to Resolution, op cit (London: DTI, 2001) para 3.4.
31. Research by J. Earnshaw, J. Goodman, R. Harrison and M. Marchington, Industrial Tribunals, 'Workplace Disciplinary Procedures, and Employment Practice', Employment Relations Research Series 2 (London: DTI, 1998) shows poorly unionised workplaces have inadequate internal dispute mechanisms.
32. Routes to Resolution, op cit (London: DTI, 2001) para 2.11, based on CIPD Survey Report 14, Recruitment, June 2000.
33. J. Earnshaw et al, op cit (1998).
34. Cully et al (1999) op cit (WERS 98) pp 129, 136 and 245 for detailed discussion.
35. Citizens Advice Fairness and Enterprise: The CAB Service's Case for a Fair Employment Commission, (London: National Association of Citizens' Advice Bureaux, 2001),
36. N. Burkitt, Workers' Rights and Wrongs: A New Approach to Employment Rights and Support for Employers (London: IPPR, 2001) p 18
37. and K. Ewing, 'Labour Law and Industrial Relations' in P. Ackers and A. Wilkinson (eds) Understanding Work and Employment: Industrial Relations in Transition (Oxford: Oxford University Press, 2003). The exception is the Inland Revenue which enforces the National Minimum Wage.
38. Employment Tribunal System Taskforce, Moving Forward: The Report of the Employment Tribunal System Taskforce 2002, p 84, para 8.70.
39. Citizens Advice, Empty Justice: The Non-Payment of Employment Tribunal Awards, September CAB Evidence (London: Citizens Advice Bureau, 2004). On the enforcement of reinstatement and re-engagement orders and compensation Employment Rights Act 1996 section 117.
40. Citizens Advice, Hollow Victories: An Update on the Non-Payment of Employment Tribunal Awards, March CAB Evidence (London: Citizens Advice Bureau, 2005). Figures based on approaching 460 CABx, with responses from 106. Reported, Financial Times, 31.3.05.
41. R. Blackburn and M. Hart, Small Firms' Awareness and Knowledge of Individual Employment Rights, Employment Relations Research Series 14 (London: DTI, 2002) p xv.
42. See P. Edwards, M. Ram and J. Black, The Impact of Employment Legislation on Small Firms: A Case Study Analysis, Employment Relations Research Series 20 (London: DTI, 2003) p 8, on the importance of informal practices.
43. The Working Time Directive 93/104/EEC. On Britain, F. Neathey and J. Arrowsmith, Implementation of the Working Time Regulations, Employment Relations Research Series 11 (London: DTI, 2001);
44. more recent evidence in C. Barnard, S. Deakin and R. Hobbs,'Opting Out of the 48-Hour Week: Employer Necessity or Individual Choice? An Empirical Study of the Operation of Article 18(1)(b) of the Working Time Directive in the UK' (2003) 32 ILJ 224.
45. J. Earnshaw et al (1998) op cit.
46. West Nfidlands Low Pay Unit, Kept in the dark? Individual Awareness of Employment Rights in the West Midlands, Briefing Paper 51 (2001) p 15.
47. Citizens Advice Improving Employment Dispute Resolution: The CAB Service's Response (London: National Association of Citizens' Advice Bureaux, 2001);
48. Citizens Advice, Fairness and Enterprise: The CAB Service's Case for a Fair Employment Commission (London: National Association of Citizens' Advice Bureaux, 2001).
49. The National Minimum Wage. Making a Difference: The Next Steps. Third Report of the Low Pay Commission (London: Low Pay Commission, 2001).
50. N. Meager et al, op cit (2002) p 24. This was a national telephone survey of 5,000 people, taking a random sample from the general population, with a 20% response rate leading to 1,000 completed interviews.
51. N. Meager et al, op cit (2002) p 181.
52. Author's ESRC research on the 'Unorganised Worker'.
53. H. Genn, op cit (1999) p 91. The base number for those with employment problems is small (n=55). Among these, 78% sought advice, and the first port of call was trade unions for 27% and CABx for 23% (p 89).
54. N. Meager et al, op cit (2002) p 185. Caution is needed in interpretation: Only 16.2%, or 164 individuals, of the sample came into this category.
55. Finding from the Survey of Employment Tribunal Applications 2003, Employment Relations Research Series 33 (London: DTI, 2004) p 108, Table 4.11.
56. J. Richard, 50 Years of the CAB (London: Citizens Advice Bureaux, 1989),
57. J. Citron, The Citizens Advice Bureaux, for the Community, by the Community (London: Pluto Press, 1989).
58. Citizens Advice Annual Report, 2002/03, p 17
59. Author's correspondence with Citizens Advice Bureaux Social Policy Officer, August 2004, for ESRC 'Unorganised Worker' project.
60. H. Genn, op cit, pp 76,89.
61. See also P. Pleasence, A. Buck, N. Balmer, R. O'Grady, H. Genn and M. Smith, Causes of Action: Civil law and Social Justice (London: The Stationery Office, 2004) ch 3.
62. CAB Service submission to the Employment Tribunal Taskforce (London: Citizens Advice, 2002) p 1.
63. Legal Services Commission Annual Report, 2001-02 (London: The Stationery Office) p 8,
64. Law Society, Access Denied (London: The Law Society, July 2002) p 4.
65. Citizens Advice, Geography of Advice: An Overview of the Challenges Facing the Community Legal Service, February, Evidence Report (London: Citizens Advice Bureau, 2004) p 12.
66. Tribunals for Users One System, One Service Report of the Review of Tribunals by Sir Andrew Leggatt, Part II, Employment Tribunals and the Employment Appeal Tribunal, para 8 (London: Department of Constitutional Affairs, March 2001), http://www.tribunals-review.org.uk.
67. Information from interviews with CABx advisors, and Citizens Advice, Geography of advice (2004) op cit, p 15.
68. Citizens Advice, Geography of advice (2004) op cit, p 15.
69. Findings from the Survey of Employment Tribunal Applications 2003, op cit, p 109.
70. Citizens Advice, The Paperless Waiting Room, April evidence (London: Citizens Advice Bureau, 2004);
71. Citizens Advice, Empty Justice op cit (2004) p 3.
72. Internet Access, Individuals and Households, Expenditure and Food Survey (National Statistics, December 2003) www.statistics.gov.uk/pdfdir/ intcl203.pdf.
73. Findings from the Survey of Employment Tribunal Applications 2003, op cit,p 109.
74. For criticism, especially the lack of public example, see B. Hepple, 'Enforcement: The Law and Politics of Cooperation and Compliance' in B. Hepple (ed), Social and Labour Rights in a Global Context: International and Comparative Perspectives (Cambridge: Cambridge University Press, 2003) p 250;
75. T. Colling, 'No Claim, No Pain? The Privatization of Dispute Resolution in Britain' (2004) 25 Economic and Industrial Democracy 567.
76. Employment Rights (Dispute Resolution) Act 1998 came into force in Acas Arbitration Scheme (England and Wales) Order 2001 SI 2001/1185, 21.5.2001 and was revoked by Acas Arbitration Scheme (Great Britain) Order 2004, SI 2004/753, Article 3, as from 6.4.2004. The Acas (Flexible Working) Arbitration Scheme (England and Wales) Order 2003, SI 2003/694, was enforced 6.4.2003 and revoked by Acas (Flexible Working) Arbitration Scheme (Great Britain) Order 2004, SI 2004/2333.
77. Dispute Resolution in Britain: A Background Paper (London: DTI, 2001) p8. Figures for 1998.
78. Findings from the Survey of Employment Tribunal Applications 2003, op cit, p 105.
79. Acas dealt with just 23 cases in the first full year of the operation of the Scheme and only 10% of unions surveyed by the TUC in 2004 expressed themselves in favour of the arbitration alternative. See TUC Focus on Employment Tribunals trade union trends survey 04/02 (London Trade Unions Congress, 2002) p 4.
80. The Acas Arbitration Scheme: An Evaluation of Parties' Views, (London: Acas, 03/04) available at http://www.acas.org.uk/strategy/research_papers.html.
81. T. Colling (2004) op cit, p 570.
82. Lord McCarthy, HL Debates (26.2.02) Hansard, col 1369, referring to the passage of the Employment Bill 2002.
83. Regulatory Impact Assessment: Employment Bill 2001 (DT1 2001) p 7, para 30.
84. Routes to Resolution, op cit (DTI, July 2001) para 1.5 and 1.6.
85. S. Burgess, C. Propper and D. Wilson, Explaining the Growth in the Number of Applications to Industrial Tribunals, 1972-1997, Employment Relations Research Series 10 (London: DTI, 2001) pp 2, 57.
86. Routes to Resolution, op cit (DTI, July 2001) para 2.6.
87. B. Hepple and G. Morris, 'The Employment Act 2002 and the Crisis of Individual Employment Rights' (2002) 31 ILJ 25 1,
88. Lord McCarthy HL debates (26.2.02) Hansard, col 1371, Lord Wedderburn HL debates (11.6.02) Hansard col 247, TUC Response to Government Consultation, Routes to Resolution: Improving Dispute Resolution in Britain (London: TUC, October 2001);
89. Citizens Advice Improving Employment Dispute Resolution, op cit (2001),
90. IDS Brief 705, 'Resolving employment disputes - getting your head round the revolving statistics (London: Income Data Services, 2002) p 2.
91. Findings from the 1998 Survey of Employment Tribunal Applications, op cit, p 24
92. Findings from the 1998 Survey of Employment Tribunal Applications, ibid at 13.
93. Ibid at viii.
94. H. Genn, op cit (1999) pp 38-43, 57, 112.
95. Citizens Advice, Improving Employment Dispute Resolution, op cit (2001);
96. Citizens Advice, Fairness and Enterprise, op cit (2001).
97. Tribunals for Users One System, One Service, op cit, Part II, Employment Tribunals and the Employment Appeal Tribunal, para 24.
98. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, S1 2001/1171 Schedule 1, rule 7(4).
99. 'Frivolously' was dropped. Employment Tribunals Regs 2001, Schedule 1, rule 14(l). Also, Regulation 2, entitled 'interpretation' says that 'misconceived' includes having 'no reasonable prospect of success'.
100. Employment Tribunals Regs 2001, Schedule 1, rule 14(3)(a).
101. Legal Action Group Briefing: Changes to Employmenent Tribunal Costs Rules (London: Legal Action Group, 2001).
102. TUC Responses to Government Consultation Routes to Resolution, op cit (2001) para 1.57.
103. Findings from the Survey of Employment Tribunal Applications 2003, op cit, p 67.
104. Citizens Advice, 'Employment Tribunals: The Intimidatory Use of Costs Threats by Employers' Legal Representatives', March CAB Evidence (London: Citizens Advice Bureaux, 2004) p 3.
105. Legal Action Group Response to Routes to Resolution (London: Legal Action Group, October 2001) pp 9, 12-16.
106. EA 2002, s 31(2), (3), (4).
107. EA 2002 (Dispute Resolution) Regulations, regulation 3(2).
108. EA 2002 s 34, (2) amends s 98 of the Employment Rights Act (ERA) 1996 on procedural fairness to add a new section s 98A(1) so that an employee will be treated as being unfairly dismissed if the statutory DDP was not completed, and this was the employer's fault.
109. Section 34 of EA 2002 inserts a new s 98A(2) into the ERA 1996. See B. Hepple and G. Morris, op cit (2002) p 264.
110. Polkey v A.E. Dayton Services Ltd [1988] ICR 142, in which the House of Lords ruled that the employer's claim that procedural fairness would have made 'no difference' to the ultimate decision to dismiss could not be taken into account by tribunals in mitigation of unfairness.
111. Routes to Resolution, op cit (DTI, July 2001) p 36.
112. Criticisms include TUC, Responses to Government Consultation, Routes to Resolution, op cit (2001) para 1.36,
113. Citizens Advice, Improving Employment Dispute Resolution: The CAB Service's Response, op cit (2001) p 7.
114. Findings from the Survey of Employment Tribunals Applications 2003 p xviii;
115. Cully et al (1999) p 77' found that while 91 % of workplaces had formal grievance procedures in 1998, only 30% of these had been activated.
116. EA 2002, s 32(2) (3) (4) and Schedule 2, Part 2. Elaborated in EA 2002 (Dispute Resolution) Regulations 2004, SI 2004/752 regulation 3.
117. EA 2002, Schedule 2, para 7. EA 2002 (Dispute Resolution) Regulations 2004, regulations 12 and 13.
118. IDS, Statutory Disciplinary and Grievance Procedures, Employment Law Supplement (London: Income Data Services, 2004) p 52.
119. B. Hepple and G. Morris (2002) 31 ILJ 245.
120. S. McKay (2001) op cit, p 332.
121. TUC Responses to Government Consultation Routes to Resolution, op cit (2001) para 1.22 and 1.31.
122. His Hon Judge John Prophet, President of the ETs (England and Wales), Memorandum to Joint Committee of Human Rights, Twelfth Report, United Kingdom Parliament, March 2002, Appendices para 7. The Human Rights Act 1998, Schedule 1, article 6, the 'right to a fair trial'.
123. Lord Wedderburn, HL debates (11.6.02) Hansard cols 244, 248.
124. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI 2004/1861.
125. This was to have been mandatory from April 2005, although following delays in its electronic version, was set back to 1 October 2005 in the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2005, SI 2005/435 para 2.
126. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861 Schedule 1, rule 1(4)(h). See critique by Chris Chapman, Industrial Law Society Spring Conference May 2004, 'Employment Tribunal Reforms: An integral Part of Workplace Dispute Resolution or an Economy Measure? Do They Achieve the Ideals of Access to Justice, Fairness and Efficiency, and User-Friendly Public Service?' at http://www.industriallawsociety.org.uk/papers/chapmanpaper.html, p 8.
127. ET 2004 Regulations Schedule 1, rule 1(8) states a claim will not be accepted by the Secretary if section 32 EA has been breached, although Schedule 1, rule 1(8) then leaves the decision to the chairman.
128. ET Regulations 2004, Schedule 1 rule 22(5), (6), (7).
129. EA 2002 section 22(1) amends section 13 of the Employment Tribunals Act 1996. In particular Section 22(1B) (to award costs to representatives) and Section 22(2) (payment for preparation time).
130. The ET 2001 Regulations Schedule 1 rule 14(1) (including the 'misconceived' criterion) is amended to include the representative in the ET 2004 Regulations Schedule 1 rule 40(3).
131. ET Regulations 2004 Schedule 1, rule 41(1) (b) and (c).
132. ET Regulations 2004 Schedule 1, rule 46.
133. Routes to Resolution: Improving Dispute Resolution in Britain, op cit (DTI, July 2001) para 3.4.
134. B. Hepple and G, Morris, op cit (2002) p 257;
135. TUC Responses to Government Consultation Routes to Resolution, op cit (2001) p 4;
136. T. Colling, op cit (2004) p 574;
137. C. Chapman, op cit (2004) p 9.
138. Article 6 prohibits disproportionate limitations to access to justice. See His Hon Judge Prophet, Memorandum to Joint Committee of Human Rights, Twelfth Report, op cit, Appendices, para 5.
139. Eighteenth Report of Joint Committee of Human Rights, United Kingdom Parliament, June 2002, para 24.
140. Ibid, paras 25, 26.
141. Tribunals for Users One System, One Service, Part II, Individual Tribunals, para 9.
142. Ibid, para 12.
143. Lord McCarthy, HL debates (26.2.02) Hansard, col 1370.
144. The Labour Party 'What is Labour Doing for Working People?' http://www.labour.org.uk/index.php?id=workingpeople04.
145. This reported the drowning of 18 Chinese cockle-pickers in Morecambe Bay in February 2004.
146. TUC, Response to Government Consultation, 'Routes to Resolution', op cit (2001) para 1.2.
147. A.L. Bogg, 'Employment Relations Act 2004: Another False Dawn for Collectivism?' (2005) 34 ILJ 72.
148. W. Brown, 'The Future of Collectivism in the Regulation of Industrial Relations', op cit, p 201.
149. See N. Burkitt, op cit (2001), Citizens Advice Fairness and Enterprise, op cit (2001) p 3.
150. Citizens Advice, Somewhere to Turn: The Case for a Fair Employment Commission (2004). This is endorsed by the National Group on Homeworking, Legal Action Group, One parent families, West Midlands Employment and Low Pay Unit, Free Representation Unit, and Oxfam.
151. B. Simpson, 'The National Minimum Wage Five Years On: Reflections on Some General Issues' (2004) 33 ILJ 40.
152. S. Hall, 'New Labour's Double-Shuffle' (2003) Soundings 24.