W1 - Aims, Sources and Institutions

Summary of employment law

Employment is formally based on a contract, but not an ordinary commercial one between equal parties / mediates between employers and employees / wider social and political considerations too

The contract of employment

Agreement between employer to pay wages/give benefits - employee does work in exchange

UK labour law (lacks, but 3 key statutes)

Lacks a labour code / Trade Union and Labour Relations Act 1992 / Employment Rights Act 1996 / Equality Act 2010

Making a claim

ADR/internal conciliation first - then considered by Acas - Employment Tribunals

R (Unison) v Lord Chancellor 2017 summary

UKSC ruled the Employment Tribunals Fees Order 2013 was unlawful = quashed (fees preventing people from accessing tribunals + fee structure discriminatory against POC/women)

Some extra points (maybe for essays)

Flexibility and security debate - some sectors require flexibility, but workers also need job security / issues for vulnerable workers / globalisation - raises risk of exploitation and modern slavery, employment law deregulating as companies try to remain competitive

Kahn-Freund - summary (collective laissez-faire)

Founder of studies of labour law in the UK / described the system of labour law as ‘collective laissez-faire’ / UK labour law is fundamentally about power - inherent imbalance between employer and employees, so employment law should be a countervailing force

Kahn-Freund - on collective bargaining

Argues workers can counter the power imbalance through collective bargaining - since changed due to increased statutes

Academic - Morris - overview

Labour law isn’t anti-business or anti-market / good regulation can actually facilitate stability and productivity (contrasts Kahn-Freund)

Further concerns (for essays)

Incremental approach to employment law = uncertainty / technical complexity of these rights + enforcement issues / distinction between employee and worker is difficult

Scrutinising ETs

Backlogs / claims must be brought within 3 months + most claims don’t succeed / other institutional mechanisms of enforcement (licensing, inspecting, administrative)

Academic - Kevin Kolben - overview

Kolben argues labour rights should be understood as human rights - but labour rights being HRs don’t automatically strengthen them / Kolben criticises the increasingly individual approach - weakening collective action + political character of labour movements

Academic - G. Davidov - overview

Davidov examines the normative goals of employment law / selective goals - focused on helping employees / universal goals - benefits to society more widely / argues that the modern approach (increased rights for more productivity is wrong - workers deserve rights regardless)

Modern role of collective bargaining

More to enhance compliance changes - now a more procedural role / statutes establish rights now, more substantive role / collective bargaining still an important power for redistributing power

Kahn-Freund’s continued relevancy

Still accurate on the power imbalance - but the way this is regulated has changed (to SERs) / traditional conception of conflict also changed (stability from workers’ rights can increase productivity - can be mutually enforcing)

Employment Rights Act 2025

Good for reform proposals/normative considerations in essays - but not for PQs (not implemented yet) / reformed the rule on qualifying periods for unfair dismissals, removed compensation cap

Right to disconnect - reform proposal

Doesn’t exist in the UK - bu could be suggested (for work-life balance)

Kahn-Freund quote on labour law (for the traditional view)

‘There is, perhaps, no major country in the world in which the law has played a less significant role in the shaping of these (labour) relations’

Kahn-Freund quote on the main object of employment law

‘The main object of labour law has always been to be a countervailing force to counteract the inequality of bargaining power’