Industrial Law Journal - recent issues

'British Jobs for British Workers': The Lindsey Oil Refinery Dispute and the Future of Local Labour Clauses in an Integrated EU Market

Barnard, C. — 2009-08-28

The Lindsey Oil Refinery dispute in the early Spring and Summer of 2009 raised issues about the posting of European Union workers to the UK to fulfil a contract on a multi-employer construction site at a time of high levels of unemployment in the UK construction industry and deepening recession. According to press reports, the dispute was resolved only with an agreement to hire at least 100 ‘British’ workers at the site. This raises questions as to the compatibility of the deal with Community law. This article looks first at the dispute at the Lindsey Oil Refinery and the legal issues raised. It then takes a step back to consider the broader question of the extent to which local hiring clauses can legitimately be included in procurement contracts.

Judicial Self-Restraint in Labour Law

Davies, A.C.L. — 2009-08-28

This article considers various examples of the use of reasonableness and proportionality tests in labour law cases. It seeks to analyse and critique the judges’ formulation and application of these tests, drawing on the extensive public law literature on judicial self-restraint or ‘deference’.

Duties and Liabilities under the Health and Safety at Work Act 1974: A Step Forward?

Howes, V. — 2009-08-28

Sensible Thinking About Sham Transactions: Protectacoat Firthglow Ltd v Szilagyi * [2009] EWCA Civ 98; [2009] IRLR 365

Davies, A. C. L. — 2009-08-28

The Temporary Agency Work Directive: Another Broken Promise?

Countouris, N., Horton, R. — 2009-08-28

The Self-Employed and the Directive on Working Time for Mobile Transport Workers

Rodgers, L. — 2009-08-28

Rethinking Victimisation

Connolly, M. — 2009-06-01

Discrimination law prohibits direct discrimination, indirect discrimination and harassment, on protected grounds, such as race, sex, etc. Workers who use the legislation, or assist others to do so, need protection against retaliation by their employer. Accordingly, the legislation seeks to remove deterrents by creating a fourth instance of discrimination, known as victimisation. The statutory formula is sparse, apparently providing employers no defence. Yet in some cases, courts sympathetic to the employer have strained the formula to provide what amounts to a benign motive defence. The result is an incoherent body of case law. This article explores the problem in Britain, with some useful illustrations from the USA, and attempts to settle upon a new statutory formula that would provide certainty and clarity, as well as fulfilling the ambition of the anti-victimisation doctrine.

The ECJ and Labour Law: A 2008 Retrospective

Kilpatrick, C. — 2009-06-01

Indirect Discrimination: Between the Wheat and the Chaff

Cunningham, N. — 2009-06-01

Whose Burden of Proof?: R v Chargot Limited (t/a Contracts Services) * [2008] UKHL 73 (HL)

Barrett, B. — 2009-06-01

Harassment and Protected Characteristics: English v Thomas Sanderson * [2008] EWCA Civ 1421; [2009] IRLR 206 (CA)

Eastwood, R. M. — 2009-06-01

The Beginning of the End for Addis v The Gramophone Company?: Honda Canada Inc. v Keays * [2008] 294 DLR (4th) 577 (Supreme Court of Canada)

Brodie, D. — 2009-06-01

Forced Retirement, Age Discrimination and the Heyday Case: Case C-388/07 R (The Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform[2009] IRLR 373 (ECJ)

Connolly, M. — 2009-06-01

Religious Freedom, Religious Discrimination and the Workplace

Pitt, G. — 2009-06-01

Class wars? Religion and (In)equality in the Workplace

Mccolgan, A. — 2009-02-26

In this paper, I seek to demonstrate the potential for conflict inherent in the prohibition of discrimination on grounds of religion or belief with the regulation of discrimination on other grounds. I suggest that such conflict is inevitable and that it is a mistake to protect religion and/or belief in like manner to grounds such as sex, race, sexual orientation and disability. While such protection is, at present, required by EC law, I suggest that legislation along present lines is not required by the European Convention on Human Rights and that it is not justified by any special quality of religion. On the contrary, I argue that requiring the accommodation of practices or beliefs categorised as ‘religious’ tends to perpetuate practices and beliefs which are problematic on equality and other grounds.

Part One of the Employment Act 2008: 'Better' Dispute Resolution?

Sanders, A. — 2009-02-26

This article will analyse Part One of the Employment Act 2008 on employment dispute resolution and in particular the repeal of the statutory workplace dispute resolution procedures only four years after Regulations implemented them. It will begin by considering the background of increasing tribunal caseload that led to their introduction in the first place. Later sections will examine the replacement of these statutory procedures with what Ministers described as the triple package of a new Advisory Conciliation and Arbitration Service (‘ACAS’) helpline, increased ACAS conciliation and a revised ACAS Code. The language of repeal and the Act's reintroduction of the Polkey line of cases might suggest that dismissal law is merely reverting back to its pre October 2004 position. This article will, however, conclude that Part One does not just ‘simplify’ dismissal law, or ‘return’ the law to September 2004 or indeed to any other time frame. Instead, it weakens key procedural protections for employees potentially by conflating the 2002 Act's different tests of ‘automatically’ unfair and ‘ordinarily’ unfair dismissals, for example. Lowering standards of procedural justice is significant in itself but this takes added importance for dismissed employees as tribunals rarely investigate the substantive fairness of dismissals.

Employment Act 2008: Implementing the ASLEF Decision--A Victory for the BNP?

Ewing, K.D. — 2009-02-26

The Employment Act 2008's Amendments to the National Minimum Wage Legislation

Simpson, B. — 2009-02-26

Regulating Rogues? Employment Agency Enforcement and Sections 15-18 of the Employment Act 2008

Wynn, M. — 2009-02-26

The Health and Safety (Offences) Act 2008: The Cost of Behaving Dangerously at the Workplace

Barrett, B. — 2009-02-26

The Notion of Working Time

Rodgers, L. — 2009-02-26

Case Law Developments in the Area of Fixed-Term Work

Koukiadaki, A. — 2009-02-26

Dismissal Protections in a Global Market: Lessons to be Learned from Serco Ltd v Lawson

Mackinnon, J. — 2009-02-26

Age Discrimination and Redundancy: Loxley v BAE Systems (Munitions & Ordnance) Limited * [2008] ICR 1348; [2008] IRLR 853 (EAT) * MacCulloch v Imperial Chemical Industries plc * [2008] ICR 1334; [2008] IRLR 846 (EAT) * Rolls-Royce plc v Unite the Union * [2009] IRLR 49 (QB)

Wynn-Evans, C. — 2009-02-26

The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law: Case C-319/06 Commission v Luxembourg, Judgment 19 June 2008

Barnard, C. — 2009-02-26

Private Life and Dismissal: Pay v UK * Application No 32792/05, [2009] IRLR 139 (ECtHR)

Mantouvalou, V., Collins, H. — 2009-02-26

Women in the Higher Education Sector

Guth, J., Wright, F. — 2009-02-26

Gender Equality and the Pensions Acts 2007-2008

Sargeant, M. — 2009-02-26