A chronicle of change

Other provisions of the TULRA dealt with the status and regulation of trade unions; trade union membership rights; and the legal rights and liabilities of trade unions when undertaking industrial action. In particular, the Act restored the pre-1971 "golden formula", providing immunity from legal action on certain grounds where industrial action took place "in contemplation or furtherance of a trade dispute".

The TULRA also abolished the NIRC. Appeals from industrial tribunals in unfair dismissal and redundancy cases were now to be heard in the Queen's Bench Division of the High Court.

Conciliation strengthened

The Conciliation and Arbitration Service, chaired by Jim Mortimer, set up shop on 2 September 1974, taking over the conciliation and arbitration role previously held by the Department of Employment, as well as some of the functions previously carried out by the Commission on Industrial Relations and the Industrial Arbitration Board.

In a letter to Mr Mortimer, Michael Foot, the new Secretary of State for Employment, set out the terms of reference for the Service, which were similar to those later to be put on a statutory footing in 1975: "to provide conciliation and mediation as a means of avoiding and resolving disputes, to make facilities available for arbitration, to provide advisory services to industry on industrial relations and related matters and to undertake investigations as a means of promoting the improvement and extension of collective bargaining" (IRLIB September 1974). (The Service was renamed the Advisory, Conciliation and Arbitration Service (ACAS) in early 1975.)

New rights and responsibilities

1974 also saw the arrival of two Acts introducing statutory regulation in wholly new areas. First was the Rehabilitation of Offenders Act 1974, which allowed for certain convictions of ex-offenders to become "spent" after a designated period, so these did not have to be disclosed to employers.

Secondly, the Health and Safety at Work etc Act 1974 (the HSWA) finally reached the statute book, after three separate attempts by successive Governments. This hugely important Act placed both broad and specific statutory duties on employers in respect of health and safety in the workplace, as well as giving rights to worker representatives in respect of workplace health and safety arrangements. (The Act was brought into force in stages, with most of its provisions effective by 1 April 1975.)

1975: the unfinished trinity

The wide-ranging Employment Protection Act (the EPA), which represented a massive extension of individual employment rights, was enacted in 1975. This was to be the second part of the Labour Government's proposed "trinity" of new employment legislation, the first being the TULRA, which dealt primarily with industrial action and trade union rights, and the last an Act on industrial democracy. In the event, this final stage was never achieved. (The EPA itself was brought into force in stages, and some parts of it were not fully in force until April 1978.)

The EPA provided for the establishment of ACAS on a statutory basis, and the setting-up of several new institutions: the Central Arbitration Committee (CAC), which was to take over the functions of the Industrial Arbitration Board; the Certification Officer (CO), who was to deal with the registration of independent trade unions and related matters; and the Employment Appeal Tribunal (EAT), the new tripartite forum for appeals on points of law from industrial tribunals and CO decisions.

European developments

Two EEC Directives were adopted in early 1975: the "Equal Pay" Directive (No.75/117/EEC), which was designed to elucidate and build upon the fundamental principle of equal pay for men and women already enshrined in Article 119 of the Treaty of Rome; and the "Collective Redundancies" Directive (No.75/129/EEC), which provided for minimum information and consultation rights for workers before redundancies were made.

New discrimination laws

The Equal Pay Act (the EqPA), as we have noted, was enacted in 1970. Its implementation date, however, was deliberately delayed so that plans for its phased implementation could be made well in advance. When it was finally brought into force, on 29 December 1975, it had already been substantially amended by the Sex Discrimination Act 1975 (the SDA).

The two Acts together were meant to provide a comprehensive anti-sex discrimination code in nearly all areas relating to employment, with two principal enforcement mechanisms. Individual complaints were to go to industrial tribunals, and the newly-created Equal Opportunities Commission (EOC) was given power to conduct investigations and take certain proceedings against employers. In addition, there was provision in s.3 of the EqPA for collective agreements to be referred to the CAC, if their terms were believed to discriminate against women.

Notable exceptions to the non-discrimination principle, however, included pensions and retirement age. (The Social Security Pensions Act 1975 contained "equal access" requirements prohibiting direct discrimination in the rules relating to access to membership of occupational pension schemes, but these were not to come into effect until April 1978.)

1976: tribunals' workload grows

During 1976, many of the provisions of the EPA were gradually brought into force, claims were starting to be brought under the EqPA, the SDA and the HSWA, and the consequent growing demands on the industrial tribunal system were immediately apparent. The tribunals' caseload had grown from a few hundred cases in 1965 to an estimated 45,000 in 1976. The EAT started business in the spring of 1976, and the first President, Sir Raymond Phillips, was appointed.

In July, the CAC made its first award under the EqPA. In what was reported as a "compromise solution", the CAC ruled that the pay rates of women in the lowest grade of female staff at Imperial Tobacco Ltd should be raised, but rejected a claim that they be raised to that of the lowest male grade.

By December 1976, ACAS had received 461 references on trade union recognition disputes (as provided for under the EPA). In its first ruling on a formal reference, ACAS recommended recognition of the National Union of Dyers, Bleachers and Textile Workers at Lois Fabric Printing Co Ltd, a 23-employee West Yorkshire firm. Although ACAS found the relevant employees to be evenly split on whether they wished to be represented by the union, "a considerable majority would be willing to join a union if it was recognised".

More legislation

Winds of change from Europe

On 9 February 1976, a new European Directive "on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions" was adopted (the "Equal Treatment" Directive - No.76/207/EEC). Its contents aroused little interest at the time, because the UK had sex discrimination legislation in place which, it was widely believed, dealt adequately with all the obligations imposed under the Directive.

Arousing far more interest was the European Court of Justice's ruling, in April 1976, that the equal pay principle enshrined in Article 119 of the Treaty of Rome was directly enforceable in Member States, irrespective of whether there had been implementing domestic legislation (Defrenne v SABENA). The Court limited the effects of its decision, however, by holding that only workers who had already lodged equal pay claims before national courts or tribunals could claim back-pay to the date of accession applicable in the relevant Member State.

While the latter part of this ruling led to a huge sigh of relief by the UK Government and employers, the fundamental principle established was, as we now know, to have far-reaching ramifications.

1977: employment rights keep growing

Nearly all the remaining provisions of the EPA were brought into force during 1977, including the rights for employees to receive itemised pay statements, guarantee pay and maternity pay, and time off work for public duties. The reduction in the qualifying hours of work for establishing continuous service was brought into effect, and the bar on unfair dismissal complaints by employees of firms with four or less employees was removed.

The ACAS Code of Practice on disciplinary practice and procedures came into effect on 20 June, superseding parts of the 1972 Industrial Relations Code of Practice. The new Code, like others produced by ACAS under statutory authority, was not legally binding in and of itself, but its provisions could be taken into account by tribunals in relevant cases.

The right of trade unions to bring claims to the CAC under Schedule 11 for an extension of terms and conditions came into force on 1 January, and 281 claims had been made by the end of March. On 22 August the ACAS Code of Practice on disclosure of information to trade unions for collective bargaining purposes came into effect, allowing the relevant provisions of the EPA to be brought into effect simultaneously.

Also in August, the level of rebate that employers could claim from the Redundancy Fund, in respect of statutory payments made to redundant employees, was cut from 50% to 41%.

Unfair dismissal: the law evolves

Over 38,000 unfair dismissal complaints were made during 1977. In an examination of the EAT's decisions during its first year of existence, IRLIB concluded that the law of unfair dismissal had been "profoundly altered". As well as the "no difference" rule now being firmly entrenched, the EAT had clearly set out the fundamental principle that it was not for industrial tribunals to decide what was reasonable, or to step into the employer's shoes: they merely had to decide whether the employer in question had acted reasonably from its point of view at the time.

Later in the year, for the first time since its inception, the law relating to unfair dismissal was considered by the House of Lords. In Devis & Sons Ltd v Atkins the Lords ruled that evidence of an employee's misconduct discovered after his or her dismissal is not admissible in determining whether the dismissal was fair or unfair; but that factor could be taken into account when assessing compensation.

In a landmark decision in November, the Court of Appeal conclusively ruled that the proper test for determining whether an employee had been "constructively" dismissed was contractual: whether the employer had been guilty of conduct which was a significant breach going to the root of the contract of employment, or which showed that it no longer intended to be bound by one or more of its essential terms (Western Excavating (ECC) Ltd v Sharp).

Europe legislates on transfers

Another Directive, later to have the most far-reaching consequences for UK employment law and government policies, was adopted on St Valentine's Day 1977. The "Business Transfers" Directive (No.77/187/EEC) provided for "the safeguarding of employees' rights in the event of transfers of undertakings, business or parts of businesses". Member States had two years in which to implement the Directive's requirements.

1978: a year of consolidation

The only major piece of legislation to appear in 1978 was the Employment Protection (Consolidation) Act (the EP(C)A). This made no substantive changes to the law, but merely consolidated into one statute all individual employment protection rights, thereby repealing most of the Redundancy Payments Act 1963 and the Contracts of Employment Act 1972. The collective aspects of the law were left in the TULRA and the EPA.

In the field of unfair dismissal, the EAT's decision in British Home Stores Ltd v Burchell laid down the proper approach for determining whether a dismissal for suspected misconduct is fair: did the employer have a genuine belief in the employee's guilt, based on reasonable grounds, after reasonable and sufficient investigation? Those guidelines have been followed to this day. In British Leyland UK Ltd v Swift, another decision of enduring application, the Court of Appeal confirmed that, when determining whether an employer acted reasonably or otherwise in dismissing an employee, the question for a tribunal was whether the employer had acted within "a band of reasonable responses" to the employee's conduct.

ACAS and CAC kept busy

In February 1978 IRLIB reported that, after two years in force, the EPA's provisions on recognition rights for trade unions had resulted in only 10 recognition agreements being concluded, despite 63 recommendations in favour of recognition by ACAS. In five cases, including the notorious Grunwick dispute, employers had taken legal action against ACAS to try and overturn its recommendation. In the Grunwick case, the House of Lords ruled that ACAS's report was void, and in June 1978 ACAS was forced to abandon its attempts to resolve the dispute.

On the other hand, by August, of the 36 equal pay references to the CAC concerning collective agreements, only two had been unsuccessful. This year also saw the CAC's first ruling in favour of a trade union (the Institute of Journalists) about the failure of the Daily Telegraph to disclose information for collective bargaining purposes. By the end of the year, the CAC had received some 64 such complaints since the EPA's provisions had come into force, but had made only four declarations in favour of the unions involved.

By the end of 1978, the CAC had made nearly 650 decisions under Schedule 11 of the EPA, including 192 in which the claim was not established. The cases where awards were made covered a total of 105,000 employees.

In April, the ACAS Code of Practice on time off for trade union duties and activities was brought into force, along with the new EPA provisions on these rights.

Market forces do not justify unequal pay

In an enormously important decision under the EqPA, the Court of Appeal ruled that "market forces" and other extrinsic factors could not be a defence to a claim for equal pay for like work (Fletcher v Clay Cross (Quarry Services) Ltd).

Breach of contract jurisdiction: chapter two

In response to a parliamentary question concerning the possible implementation of (what was to become) s.131 of the EP(C)A, so as to give industrial tribunals jurisdiction in breach of contract cases, the Government replied: "the question ... has been under consideration for some months. Discussions on this matter are continuing and it is not possible to say when consideration of this question will be completed." A draft Order was drawn up in November 1978, but this never saw the light of day.

1979: a different order

In 1979 a new Conservative Government came to power, and the role of legal intervention in the workplace was immediately put under scrutiny, in line with commitments set out in the party's election manifesto. Detailed proposals for new legislation were published but, meanwhile, changes which could be achieved via statutory instruments were implemented: in October, the qualifying period for unfair dismissal complaints was doubled to 52 weeks; and in November, the minimum period required for consultation with recognised trade unions over proposed redundancies was reduced from 60 days to 30 days in cases involving between 10 and 99 employees.

By the end of the year, a new Employment Bill was before Parliament.

Equal pay uncertainties

In June 1979, IRLIB reported that the European Commission was threatening legal action against the UK for not fully complying with the "Equal Pay" Directive. The Commission contended that the EqPA gave too restrictive an interpretation of the Directive as regards "equal value", in that an employee could not claim equal pay for work of equal value unless the employer had itself instituted a job evaluation scheme. In the meantime, said IRLIB, "it is always possible that individual complainants in equal pay cases may seek to get British courts to directly enforce the EEC provisions without waiting for amending national legislation (technically possible, though not so far put to the test)."

In the first equal pay case to be referred to the ECJ by a British court, the Court of Appeal asked whether, under Article 119, a woman could claim equal pay with a predecessor employee (Macarthys Ltd v Smith). (Lord Denning, in the minority, thought it clear that she could.) Two other referrals followed later that year: one from the Court of Appeal involving equality in occupational pension schemes (Worringham and Humphreys v Lloyds Bank plc) and one, from the EAT, relating to equal pay for part-timers (Jenkins v Kingsgate (Clothing Productions) Ltd).

In the first ever appeal against a CAC equal pay award, the High Court held that the Committee had exceeded its jurisdiction when it had made an award despite no evidence of overt pay discrimination, and which had the effect of a general wage review (R v Central Arbitration Committee ex parte Hy-Mac Ltd).

In July, the EOC issued a Non-Discrimination Notice against Electrolux Ltd. This followed a formal investigation into the company's pay practices, which had begun in April 1977, and was the first such notice in the employment field to be issued by the Commission. (The CRE had by this time issued four such notices, and had begun some 40 formal investigations.)

"No difference" principle enshrined

In the landmark decision in British Labour Pump Co Ltd v Byrne, the EAT held that a failure to follow a proper procedure before dismissing did not make that dismissal inevitably unfair. Rather, in such cases a tribunal had to ask whether, on a balance of probabilities, even if the employer had made further enquiries and gone through a proper procedure, it would have been reasonable in still deciding to dismiss.

Breach of contract jurisdiction: chapter three

In a written parliamentary answer on 2 April 1979, the Attorney-General announced that, in the light of representations made to him, the Lord Chancellor had decided that, for the time being, he would not make an order extending industrial tribunals' jurisdiction to breach of contract cases.

1980: step one

The Employment Act 1980 was as wide-ranging as the employment Acts passed by the previous Government, but its thrust was either to undo many of the previous measures, or to restrict the application of those remaining. Its implementation was phased in over the year.

In addition, new Industrial Tribunals Rules of Procedure were introduced in October, allowing for pre-hearing assessments, increased informality in proceedings, and more flexible rules on costs.

European law overrides domestic law

In its first decision on the interrelationship of UK and EEC employment law, the ECJ ruled that a woman could claim equal pay with her male predecessor (Macarthys Ltd v Smith). Since the case could be decided within the framework of Article 119, the Court found it unnecessary to decide whether or not the provisions of the "Equal Pay" Directive could be directly enforced in Member States.

When the case came back to the Court of Appeal, Mrs Smith's equal pay claim was upheld, notwithstanding the Court's earlier ruling that, under the EqPA, a claimant and her comparator had to be employed contemporaneously. Lord Denning said: "It is important now to declare - and it must be made plain - that the provisions of Article 119 of the Treaty of Rome take priority over anything in our English statute on equal pay which is inconsistent with Article 119 ... Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority."

Pregnancy dismissal not sex discrimination

In Turley v Allders Department Stores Ltd, the EAT held that a woman dismissed because she was pregnant could not claim that she had been the subject of unlawful sex discrimination. The majority of the EAT was of the view that there was no masculine equivalent of a pregnant woman, and so there could be no "like with like" comparison as required by the SDA.

1981: transfer rules enacted

The Transfer of Undertakings (Protection of Employment) Regulations were laid before Parliament in the summer of 1981, some two years after the implementation date required under the "Business Transfers" Directive, and even then only after the European Commission had begun infringement proceedings against the UK. The Regulations, intended to meet the UK's obligations under the Directive, were made under the authority of the European Communities Act 1972, so that Parliament could only approve or reject them, and amendments could not be made. The responsible Minister, David Waddington, noted that he was recommending the Regulations "with a remarkable lack of enthusiasm". The Regulations were eventually passed in December 1981, although they did not come into operation until 1982.

Further legislation on trade unions and industrial action was also proposed, in line with the Government's new "step by step" approach to the reform of industrial relations law.

1982: the second step

The Government's second tranche of employment law, the Employment Act 1982, reached the statute book at the end of the year. Its provisions related mainly to industrial action and union membership, and IRLIB concluded that the Act "seeks to change the face of industrial disputes in Great Britain".

In addition, from September 1982, the purposes for which a trade union could recoup ballot costs were extended to include ballots about the acceptance or rejection of employers' offers relating to wages and other contractual terms and conditions.

New sick pay scheme

The Social Security and Housing Benefits Act 1982 fundamentally changed the method of providing for employees who were unable to work due to sickness. Employers were required (from April 1983) to pay a fixed amount of statutory sick pay (SSP) for the first eight weeks of an employee's absence, but could recoup that whole amount from the Government via deductions from their national insurance contributions.

UK equal pay law found wanting

In July, the ECJ ruled that the UK had failed to meet its obligations under EEC equal pay law, because a woman could not claim equal pay for work of equal value unless her employer had instituted a job evaluation scheme (Commission of European Communities v United Kingdom of Great Britain and Northern Ireland, Case 61/81).

End of fair wages law

The Fair Wages Resolution, under which government contractors were required to observe minimum pay and conditions by reference to the established terms, or the general level of terms, operable in the trade or industry concerned, was rescinded in December 1982. This was not to take effect until September 1983, however, so that the Government had time to denounce the International Labour Organisation (ILO) Convention 94, which requires public sector contracts to include a fair wages clause (ironically, modelled on the British arrangements). (Such clauses did, however, continue to form a standard part of local government contracts, and disputes continued to be taken to the CAC despite its lack of official jurisdiction.)

1983: proposals, codes and orders

Early in 1983, the Government set out proposals for yet more trade union legislation, following its Green Paper Democracy in trade unions. The resulting Trade Union Bill, introduced in November, dealt with trade union elections, strike ballots and trade unions' political activities.

Another consultative document proposed the repeal of the Truck Acts, subject to the introduction of new legislative protection against unlawful deductions from wages. In order to implement this proposal the Government gave notice denouncing the ILO Convention 95, which contains obligations concerning the protection of wages.

A new Code of Practice on the closed shop came into force in May.

Discrimination law under the spotlight

In response to the ECJ's ruling against the UK on the question of equal pay for work of equal value, the Government laid an Order (under the European Communities Act 1972) to amend the EqPA. The original draft had drawn strong criticism from the EOC among others, and just prior to the election the Government had amended it. The Regulations were passed by the Commons on 30 July, after a 90-minute debate, during which the Under-Secretary of State for Employment, Alan Clark, failed to answer any questions raised by MPs on points of substance or drafting. He instead read his speech verbatim, making clear his personal dislike for the Regulations.

The Equal Pay (Amendment) Regulations were finally approved by the House of Lords on 5 December, although their approval was subject to a proviso that "this House believes that the Regulations do not adequately reflect the 1982 decision of the ECJ and article 1 of the EEC Equal Pay Directive of 1975".

New industrial tribunal procedures were introduced to deal with equal value claims, and these had also been amended in response to strong criticisms by the EOC. Nevertheless, the EOC maintained its criticism of the new law, asserting that it was still open to challenge before the ECJ, and warning that there would be "protracted, costly and unnecessary litigation". In the event, the law and procedures were brought into force on 1 January 1984.

Meanwhile, however, in November, the ECJ had held once again that the UK was in breach of its obligations under European equality law (Commission of European Communities v United Kingdom of Great Britain and Northern Ireland, Case 165/82). This ruling concerned the exclusions in the SDA in respect of private households and small employers, and the failure of the Act to render void any discriminatory provisions in collective agreements and works rules.

Another part of this case related to discrimination against male midwives, which was partially permissible under the SDA. The UK's defence to this part of the Commission's complaints was successful, but, by that time, academic. An Order, which came into effect in September, amended the SDA, so as to make it unlawful to discriminate against men seeking training or employment as midwives.

In June, the EAT heard the case of a Mr Barber, who claimed that he had been subject to unlawful sex discrimination. He had been made redundant at age 52, but he was not entitled to an immediate retirement pension as a woman of his age would have been. The EAT rejected his claim, as had the industrial tribunal, because s.6(4) of the SDA excluded any claim relating to provision for retirement (Barber v Guardian Royal Exchange Assurance Group).

The CRE's Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment was finally passed through Parliament in the spring of 1983, some six years after the first draft was published. The Government decided, however, that the Code should not come into force until 1 April 1984, in order to "give employers a reasonable time to consider the Code and its implications for them".

1984: Step three

The Trade Union Act 1984 received Royal Assent on 26 July 1984. Unlike the previous two major Acts on employment law, this one dealt almost exclusively with the relationship between trade unions and their members. The Act:

The scheme for reimbursing trade unions for ballot costs was also amended to cover union elections held in accordance with the 1984 Act, and ballots on the approval of existing political funds. In addition, time limits for claims under the scheme were introduced, causing several trade unions to revise their previous position of boycotting the fund in line with TUC policy.

Industrial disputes and the role of the law

Despite the existence of a mass of legislation restricting and regulating industrial action, the employer involved in the most momentous industrial dispute for decades made next to no use of it. During the miners' strike of 1984-85, the National Coal Board sought and obtained only one injunction - to prevent secondary picketing made unlawful by the Employment Act 1980. The injunction was flouted, but the NCB took no further action.

The High Court was nevertheless involved at nearly every stage of the dispute, mainly due to legal actions brought by individual union members. Most of these actions did not directly involve the new legislation either, but generally challenged, under common law, the validity of the strike under the union's rules. Some of these actions eventually led to fines, and then sequestration of the union's assets, culminating in a receiver being appointed to take control of the NUM's income and assets.

In contrast, the law was successfully utilised in the dispute between Eddie Shah's newspaper company and the print and journalist unions, resulting in massive fines against the NGA during the currency of the dispute, and an award of nearly £125,000 in damages later in 1984 (Messenger Newspapers Group Ltd v National Graphical Association (1982)). In Dimbleby & Sons Ltd v National Union of Journalists, a case involving the complexities of the provisions on secondary action, the arguments were taken as far as the House of Lords, which, like all the courts below, found against the union.

GCHQ

In January the Government announced that employees working at the Government Communications Headquarters would be banned from joining an independent trade union. Within a few months, the ILO had ruled that the ban breached Convention 87 guaranteeing freedom of association and the right to organise, and the High Court had found that the decision was invalid and of no effect, because of the lack of consultation.

The Court of Appeal upheld the Government's appeal against that decision in August, ruling that the ban could not be reviewed by the courts because the decision had been taken on grounds of national security, and the House of Lords later upheld that decision (R v Secretary of State for Foreign and Commonwealth Affairs ex parte Council of Civil Service Unions and another).

The cook, the painter, the joiner and the engineer

On 10 April, the first ever equal value claim was referred to an independent expert. The initial industrial tribunal hearing in Hayward v Cammell Laird Shipbuilders Ltd took only one day, causing IRLIB to remark that "the comparative ease with which Ms Hayward has cleared the first set of procedural hurdles is welcome encouragement for the EOC."

The independent expert subsequently concluded that the work of Ms Hayward - a cook - was of equal value to that of her comparators - a painter, a joiner and a thermal insulation engineer. At the second hearing, the company was barred from raising a "genuine material factor" defence because it had failed to raise the issue at the previous hearing. The tribunal upheld Ms Hayward's claim.

Data protection law

The Data Protection Act 1984 received Royal Assent on 12 July, although its provisions were not to come into force for another two years. The Act set down new standards for the obtaining and storage of personal information kept on computer, and provided employees with a right of access to computerised data about themselves held by their employers.

1985: miscellaneous changes

There was no new major legislation in 1985, but it was still a time of important changes in employment law.

Pregnancy dismissal may be sex discrimination

In Hayes v Malleable Working Men's Club and Institute and Maughn v North East London Magistrates' Court Committee, the EAT held that dismissal of a woman on the grounds of her pregnancy was capable of constituting unlawful sex discrimination: if the dismissal was due to the consequences of pregnancy - for example, the need to take time off from work - then it was possible to ask whether a man in a comparable situation would have been treated more favourably.

No equal pay for the cook

Having won her equal value case, Ms Hayward returned to the industrial tribunal to ask for a declaration that her basic pay and overtime pay should be the same as that of her male comparators. The tribunal, however, held that because Ms Hayward's overall pay package - taking into account her better sick pay, holiday entitlement and other benefits - left her no worse off than her comparators, she could not have the declaration she sought. Indeed, the tribunal thought that such a declaration would result in her being better off than her comparators, and undesirable "leap-frogging" claims from the male employees might follow.

Sunday trading - round one

A Bill to legalise Sunday trading, and containing measures to protect shopworkers from being compelled to work on Sundays, was introduced into Parliament in December 1985. It was defeated by 14 votes on its second reading - the first such defeat for the Conservative Government since it had come to power. The Government announced it had no plans to reintroduce the Bill in an amended form, but retailers pledged to pursue the issue.

1986: more Acts

Three important pieces of legislation emerged in 1986. The first was the Wages Act, although few realised at the time just how great an impact this new law would have, particularly on the industrial tribunals' caseload.

The Act abolished the Truck Acts, and replaced these with a whole new framework of protection against deductions from wages without employees' consent. The Act also limited the powers of Wages Councils, and provided that no new ones could be established. Finally, the Act brought the redundancy rebate scheme to a virtual close, so that employers with 10 or more employees had to foot the whole bill of any statutory redundancy payments made.

Discrimination law behind Europe

The Sex Discrimination Act 1986 included far more than had originally been intended. It started life as a modest Bill with the aim of bringing the SDA into line with the EEC "Equal Treatment" Directive, in those areas where the ECJ had already found the UK's law wanting (see above). In particular, the Act rendered discriminatory terms in collective agreements and works rules void, and so it was thought unnecessary to retain the only mechanism for collective equal pay complaints. Section 3 of the EqPA was consequently repealed, and the CAC lost its jurisdiction in this area. The Bill was also used as a convenient vehicle to repeal "unnecessary restrictions and out-of-date discrimination on women's hours of work", which were viewed as incompatible with EEC law.

However, in February 1986, the ECJ had given its historic ruling in Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). The Court held that a policy of retiring men at the age of 65 and women at age 60 was contrary to the "Equal Treatment" Directive, and the relevant provision of the Directive could be relied upon by employees of public authorities, notwithstanding the inconsistency between the Directive and domestic law.

Consequently, the Act provided for the amendment of the SDA, the EqPA, and the EP(C)A's unfair dismissal provisions, so as to bring them into line with the ECJ's ruling. The new discrimination provisions made it unlawful to discriminate against women in relation to retirement generally, but carefully retained the right for employers to discriminate in respect of access to, and provision of, occupational pensions.

Meanwhile, however, developments in Luxembourg were again leaving UK law behind. In Bilka- Kaufhaus GmbH v Weber von Hartz, the ECJ held that the exclusion of part-time workers from an occupational pension scheme - a policy which, on the face of it, indirectly discriminated against women - would be contrary to Article 119 of the Treaty of Rome unless the policy could be objectively justified. The ruling was hugely significant for a number of reasons: it confirmed that indirect pay discrimination was covered by Article 119; it introduced a new stringent test of objective justification for indirect discrimination; and, perhaps most importantly, it confirmed that the issue of occupational pensions could be brought within the ambit of Article 119 (which was directly enforceable by all employees).

As if that wasn't enough, the ECJ also held, in Johnston v Chief Constable of the Royal Ulster Constabulary, that the national security exceptions contained in the SDA also contravened the Directive.

New maternity pay scheme

The Social Security Act 1986 introduced a new right to statutory maternity pay (SMP), replacing the previous EP(C)A and social security provisions. From April 1987, the responsibility for paying SMP was to fall entirely on employers. Employees with 26 weeks' service at the qualifying week were entitled to 18 weeks' SMP at a flat rate, while those with two years' service would be entitled to a higher rate (90% of normal weekly earnings) for the first six weeks out of the 18. Entitlement and payments were subject to detailed regulations. Employers were still entitled to a 100% rebate of payments made, but this was now to be recovered in the same way as SSP, via deductions from employers' national insurance contributions.

Market forces defence to equal pay claims upheld

At the end of the year, the House of Lords held that the defences open to an employer in an equal pay claim could include market forces or other extrinsic factors, regardless of whether the claim involved "like work" or work of "equal value". The Lords also confirmed, however, that to rely on such a defence, an employer would have to show that there were objectively justified economic or administrative reasons for unequal pay (Rainey v Greater Glasgow Health Board).

1987: the death of the "no difference" rule

In yet another Green Paper on industrial relations law, the Government set down more proposals for legislation on industrial action and trade unions. The TUC called the proposals "one-sided, unbalanced and hostile", and employers' organisations, such as the CBI, also had strong reservations about some of the measures. When the Employment Bill was introduced at the end of the year, it included even more provisions than those set out in the Green Paper.

"No difference" rule rejected by Lords

In probably the most important unfair dismissal case ever, Polkey v A E Dayton Services Ltd, the House of Lords rejected the so-called "no difference" rule - that is, that a defective or inadequate procedure leading to a dismissal will not render the dismissal unfair if the procedural shortcomings made no difference to the result. The rule had been applied consistently for many years, and had come to dominate the thinking of all courts and tribunals, in cases where a dismissal was challenged on procedural grounds.

Their Lordships acknowledged that there might be rare cases where an employer, at the time of dismissal, could reasonably conclude that proper procedure could make no difference to the outcome - but they held that there was no justification for the sort of enquiry, frequently conducted by tribunals, into whether the defective procedure had actually made any difference. (Such an enquiry would be permissible, however, when it came to assessing compensation.)

The practical implication of the Lords' decision was that employers were now under a greater obligation to follow proper procedures before dismissing. It was somewhat ironic, then, that in the same year the Government rejected ACAS's new draft code of practice on disciplinary rules and procedures, primarily because it was viewed as too long and too complex. ACAS was disappointed, and rather than return to the drawing board, it issued substantially the same document as an "advisory handbook".

1988: the fourth step

The Employment Act 1988 received Royal Assent on 26 May, creating a variety of new rights for trade union members against their unions, and introducing yet more regulation of industrial action ballots.

Other legislation

There were several other legislative changes during 1988:

Also, by the end of the year, another employment Bill had been published "to remove unnecessary obstacles to employment, particularly in relation to women and young people", as well as to implement some other measures canvassed as far back as June 1986.

House of Lords upholds cook's claim

Ms Hayward, the Cammell Laird cook, lost her appeals to the EAT and Court of Appeal on the question of whether she was entitled to the same basic and overtime pay as her comparators. In May 1988, however, the House of Lords finally ruled that a successful equal pay claimant is entitled to have each distinct term in her contract of employment modified so that it is no less favourable than the corresponding term in the comparators' contracts. They left the door open, however, for other employers to raise the "overall package" argument as a genuine material factor defence.

1989: deregulation continues

The Employment Act 1989 received Royal Assent on 16 November 1989. Its contents were wide-ranging, the provisions having their origins in both EEC law and previous government proposals.

Other legislation

Transfer Regulations construed in European light

The first case concerning the application of the Transfer of Undertakings Regulations to reach the House of Lords was decided in March 1989.

In Litster and others v Forth Dry Dock & Engineering Co Ltd and another, the Lords held that the Regulations had to be construed in accordance with the EEC "Business Transfers" Directive and subsequent decisions of the ECJ on the Directive's effect. In this case, the Lords decided, this required additional words to be read into the Regulations, so as to achieve the protection for employees required by European law. The effect of their Lordships' decision was that where an employee was dismissed by reason of a transfer, thus making that dismissal automatically unfair, liability for that dismissal fell to the transferee.

Health and safety law from Europe

In June 1989, a Directive came into force "on the introduction of measures to encourage improvements in the safety and health of workers at work" (No.89/391/EEC). This "Framework" Directive, as it became known, required, among many other things, that employees be given statutory protection against dismissal or victimisation in respect of certain health and safety matters.

Breach of contract jurisdiction: chapter four

In June, the Department of Employment began consultations on the desirability of implementing s.131 of the EP(C)A so as to give industrial tribunals jurisdiction to deal with breach of contract claims.

More legislation to come

In early 1989, the Government set out proposals for yet more legislation: to further restrict secondary action and remove any statutory support for the pre-entry closed shop.

Later in the year, the ILO severely criticised the UK Government's approach to collective labour law issues, particularly the general volume and complexity of the law.

The ILO's Committee of Experts found that while many of the measures were not, individually, incompatible with ILO Convention 87 (concerning freedom of association and the right to organise), the cumulative effect could constitute an incursion on the rights guaranteed by the Convention.

By November, however, the Government had issued yet more proposals, this time aimed at restricting unofficial industrial action. The Government's fifth Bill on industrial relations was published in December. Commenting on the Bill, the Secretary of State, Norman Fowler, said: "As we move into the 1990s it is essential that we ensure that industrial relations law is kept up to date and that it continues to provide essential rights for people at work and effective protection against the abuse of industrial power. That has been the consistent purpose of our legislation since 1979 and it is the theme of this new Bill."

1990: step five

The Employment Act 1990 received Royal Assent in November, bringing yet more regulation to industrial relations matters.

In addition, the Code of Practice on industrial action ballots was brought into force on 11 April.

ECJ rules on pensions equality

In May the ECJ gave its momentous decision in Barber v Guardian Royal Exchange Assurance Group. It held that occupational pensions payable under a contracted-out scheme were "pay" under Article 119, and so had to be offered to men and women on equal terms, including the age at which they became payable.

As Article 119 is directly enforceable in UK courts and tribunals, the decision sent shock-waves throughout UK employers and the pensions industry. The Court sweetened its decision, however, by ruling that it did not have retrospective effect (although no-one was really sure about the scope of the Court's ruling on this point). The Court also confirmed that redundancy payments - whether contractual, statutory or completely voluntary - were also "pay" and so subject to the principle of equality.

The Barber ruling, while crystal clear on its substantive point and on the limited issues it dealt with, still left many questions unanswered. A whole raft of referrals to the ECJ was to follow. In particular, the High Court's referral in Coloroll Pension Trustees Ltd v Russell and others sought answers to extensive questions relating to equality in pensions matters.

Pregnancy dismissals in breach of EEC law

In the next major development on the vexed question of pregnancy and sex discrimination, the ECJ ruled in two cases - Hertz and Dekker - that dismissing or refusing to employ a woman because she was pregnant, was a breach of the "Equal Treatment" Directive.

Industrial tribunals' work increases

Industrial tribunals' caseload had been decreasing steadily for a number of years, but by 1990 that trend had gone into reverse. Wages Act cases, in particular, were increasingly swelling the tribunals. Applications under the Act rose from 522 in 1987-88 to 3,244 in 1988-89, and to 4,878 in 1989-90. In response to this extra pressure, and the resulting delays in the hearing of cases, the Government allocated an extra £750,000 to the tribunals' budget for 1990-91.

In a parliamentary answer, the Government said that in the six months to September 1990, only 50% of tribunal cases had their first hearing within 12 weeks of the originating application being filed. Substantial delays were also occurring in the EAT, and additional judge-time was allocated to relieve the backlog.

From 1 April 1990, compensation awards made by industrial tribunals could attract interest if they remained unpaid 42 days after the tribunal's decision was sent to the parties.

Breach of contract jurisdiction: chapter five

In March 1990, the Government announced that industrial tribunals would be given the power to determine damages claims in respect of breach of employment contracts. The statutory Order bringing into force s.131 of the EP(C)A was to be made "as soon as practicable".

1991: a quiet year?

Summer 1991 saw the publication of proposals for still more industrial relations law, "to consolidate and build on what has been achieved in the past 12 years." Before those proposals became a Bill, however, new obligations from Europe were looming.

New Directive on written particulars

In October 1991 a new European Directive "on an employer's obligation to inform employees of the conditions applicable to the contract of employment relationship" (No.91/533/EEC) was adopted. This "Written Particulars" Directive was probably the least controversial measure to emerge from the Social Charter action programme, but still required certain amendments to UK law.

Codes come and go

New revised Codes of Practice - on time off for trade union duties and activities, and trade union ballots on industrial action - were brought into force in May 1991.

Two "obsolete" Codes of Practice were repealed in 1991: the 1972 Industrial Relations Code of Practice and the 1983 Code of Practice on closed-shop agreements and arrangements. Although many parts of the 1972 Code were out of date, it was, nevertheless, the only Code produced under statutory powers which gave advice on the handling of redundancies.

Sick-pay burden shifted to employers

The Statutory Sick Pay Act 1991 provided that most employers would now have to meet 20% of their SSP costs. Only "small" employers - classed as those whose contributions bill did not exceed £15,000 - could claim full reimbursement of SSP paid out to an employee for over six weeks during any one period of entitlement. Additionally, national insurance relief, which allowed employers to reclaim some of the NI contributions made on SSP payments, was abolished.

In April 1991 the higher rate of SSP was set at £52.50, which represented no increase on the previous year. The rate has remained pegged since then.

Breach of contract jurisdiction: chapter six

The Government announced at the end of 1991 that new legislation would be required before it could extend industrial tribunals' jurisdiction to cover breach of contract complaints. The current s.131 of the EP(C)A was, apparently, "inadequate" to achieve the desired objective, and fresh legislation would therefore be introduced "in a future legislative programme".

1992: European law dominates the arena

The Treaty on European Union (the "Maastricht treaty") was signed by the Heads of State of all 12 Member States on 12 February. However, the agreement signed under the accompanying protocol, which extended the scope of the qualified majority voting procedure into new areas of social policy (the so-called "social chapter"), covered only 11 States. Proposals made under that agreement would not therefore bind the UK.

A further protocol to the Treaty, applicable to all Member States, expressly limited the effect of the ECJ's ruling in Barber. The protocol states: "For the purposes of Article 119 ... benefits under occupational social security schemes shall not be considered as remuneration if and insofar as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law."

This did not settle all the outstanding issues arising from the Barber decision, however, and the ECJ's rulings on the several cases which had been referred to it on this subject were still eagerly awaited.

The "F" word enters the language

In November 1992, the ECJ ruled that where an EEC Directive requires individuals to be granted identifiable rights and a Member State has failed to translate those rights into law, any individual who suffers loss as a result may be entitled to compensation from the State (Francovich v Republic of Italy).

As well as providing a powerful incentive for Member States to implement their obligations by the due date, the case was also seized upon as a potentially powerful weapon for those who had lost out in the past due to non-implementation, or faulty implementation, of European law. The extent to which Francovich could be utilised was (and still is) unclear. Nevertheless, the "F" word was from now on frequently to be raised in many circumstances where there appeared to have been some past failure by the UK to implement its European law obligations.

New law required by old and new Directives

In June, a new Directive requiring revisions to the original 1975 "Collective Redundancies" Directive was adopted by the Council of Ministers (No.92/56/EEC). This added new requirements which would have to be implemented in Member States. Furthermore, case law emerging from the ECJ made it apparent that the UK had fallen short of fully implementing its obligations under the "Business Transfers" Directive, and that new legislation would be required if those obligations were to be met. In particular, it appeared that the exclusion of "non-commercial" ventures from the UK's Transfer Regulations was in breach of the Directive, and the "F" word raised its head again!

Meanwhile, however, the European Commission had started legal proceedings against the UK in respect of its alleged failure to implement the requirements of the original "Collective Redundancies" Directive and the "Business Transfers" Directive.

In October, yet another Directive was adopted, setting out minimum rights for pregnant and breastfeeding workers. The "Pregnant Workers" Directive (No.92/85/EEC) also clearly required extensive legislation if it was to be implemented fully in the UK.

Pregnancy dismissal question referred to ECJ

The question of whether the dismissal of a pregnant woman was unlawful sex discrimination finally reached the House of Lords in November. In Webb v EMO Air Cargo (UK) Ltd, the Lords held that, on the face of it, it was not unlawful under the SDA to dismiss a woman because she was pregnant and would need time off work, if a male employee who also needed time off work would also have been dismissed. However, accepting that the position might be different under European law, it referred the case to the ECJ.

Servicewomen win maternity rights

In response to legal proceedings brought by the EOC, the Government conceded that its past policy of automatic dismissal of servicewomen who became pregnant was in breach of the "Equal Treatment" Directive. The Ministry of Defence subsequently changed its policy, but the EOC encouraged women who had been dismissed under the policy in the past to seek advice as to whether they might be entitled to compensation.

Collective law consolidated

The biggest piece of legislation to see the light of day in 1992 related, once again, to trade unions, industrial relations and industrial action. For a change, however, it made no changes to the law, but merely consolidated all the collective aspects of employment law into one place. The Trade Union and Labour Relations (Consolidation) Act 1992 (the TULR(C)A) came into force on 16 October and repealed in full the Trade Union Act 1913, the TULRA and the Trade Union Act 1984. All the provisions relating to collective rights in the Employment Acts of 1980, 1982, 1988 and 1990 were also repealed.

Meanwhile, in case anyone suffered withdrawal symptoms at the lack of further regulation on industrial action, a new Code of Practice on picketing was brought into force on 1 May, and in November yet another employment Bill was published.

Other legislation

Quest for truth approved

In November the House of Lords ruled that, in future, courts would be able to refer to Hansard in their search for the true meaning and purpose of ambiguous legislation (Pepper v Hart and others). This overturned a principle which had stood for generations, and had a particular redolence for employment law, given that so much parliamentary debate had been devoted to the subject over the past years, and - dare we say - given that much of the law often appeared ambiguous or obscure!

1993: step six

The new employment Bill had originally been conceived as a trade union reform Bill, constituting the latest (and last?) step in the Government's programme of reform of collective labour law. But, with the arrival of the new European obligations; with the prospect of the UK being found by the ECJ to be in breach of some of its existing obligations; with the emergence of important case law arising during the Bill's passage through Parliament; and with various other outstanding matters awaiting a legislative opportunity, the Bill just grew and grew ...

The Trade Union Reform and Employment Rights Act (the TURERA) consequently was the largest employment Act ever, causing gasps of trepidation among lawyers and personnel practitioners (most of whom had only just adjusted to all the new section numbers under the TULR(C)A). The Act received Royal Assent on 1 July, and most of its provisions were brought into force by the end of the year. The major exception was the Act's new maternity rights, implementation of which was to be delayed until October 1994.

Discrimination compensation limits removed

After her successful case on discriminatory retirement ages, Ms Marshall had returned to the fray yet again, this time on the question of compensation. Her case again went as far as the ECJ, which ruled in August that the UK's limit on sex discrimination compensation was a breach of EEC equality law (Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) (No.2)).

In November, the Government acted on this ruling and removed the upper limit on compensation awards in sex discrimination cases. The Sex Discrimination and Equal Pay (Remedies) Regulations 1993 also provided that interest could be awarded in both sex discrimination and equal pay awards. The Government further announced that it would similarly remove the limit in race discrimination cases. However, it felt there was no necessity to change the law on the maximum two years' back pay or damages available in successful equal pay claims, or the SDA's provisions allowing no compensation to be awarded in cases of unintentional indirect discrimination.

New health and safety obligations

In the largest legislative change to health and safety law since the HSWA, six sets of safety Regulations - the "six-pack" - were brought into force. These Regulations implemented various Community Directives on health and safety, and covered a wide range of issues, including the management of health and safety at work, the physical conditions in the workplace, standards of working equipment and protective clothing, and rules about the use of display screen equipment.

Equal pay: scope broadened by ECJ

In Enderby v Frenchay Health Authority and Secretary of State for Health, the ECJ built on the principles it had established in the 1989 Danfoss case, and held that where unequal pay could be shown to exist between two groups of workers doing work of equal value, one of which was predominantly women and the other predominantly men, then it was up to the employer to show that the pay difference was objectively justified and unrelated to sex. This illustrated the fundamental difference between the approach to pay discrimination taken by the ECJ and that taken by the UK's tribunals and courts. It also highlighted again the difference between the broad scope of Article 119 and the UK's equal pay legislation which was set in the context of only individual, and not collective, pay discrimination.

The Court also ruled, contrary to certain EAT decisions in the UK, that separate collective bargaining arrangements could not in themselves constitute objective justification.

Working time Directive adopted

At the end of the year, a Directive on the organisation of working time - the "Working Time" Directive - was adopted by the EC Council of Labour and Social Affairs. This provides for minimum daily and weekly rest periods, minimum paid holidays, and maximum weekly hours of work. The Directive contains extensive derogations and provisions for phased implementation, and none of its requirements need be translated into national law until November 1996.

The UK Government, however, was still unhappy with the Directive and launched proceedings in the ECJ challenging its legal validity.

Industrial tribunals

In December, new rules of procedure for industrial tribunals were brought into force. The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 tidied up into one place all the previous separate statutory instruments governing tribunals' procedures. The new rules incorporated the changes provided for by the TURERA, but also included many new provisions aimed primarily at speeding up the hearing of cases. They also implemented the pre-hearing review and deposit procedure that had been provided for by the Employment Act 1989. New EAT rules followed soon after.

The need to speed up cases was apparent from the statistics covering 1991-93. These showed an unabated rise in the number of tribunal applications being made - 53,445 cases were disposed of in 1992-93, a 28% rise over the previous year - and unfair dismissal applications had returned to the levels of the early 1980s. As in previous years, only a minority of these cases actually went as far as a hearing. Nevertheless, the tribunals heard 17,836 cases in 1992-93.

Breach of contract jurisdiction: chapter seven

As noted above, the new legislation was now in place allowing the Government to make the necessary Order in the terms it desired. The new s.131 was brought into force on 30 August 1993, and the Government said it would make the relevant Order as soon as possible. A draft Order was prepared in December, but this was never actually laid before Parliament.

1994: the unfinished story

While there are no more major employment Bills on the horizon, the policy of deregulation continues, notably in the Contracting Out and Deregulation Bill currently before Parliament. Among its many other provisions, this provides for the repeal of s.59(1)(b) of the EP(C)A, which makes a redundancy dismissal unfair if the employer has departed, without special reasons, from a customary arrangement or agreed procedure on selection. The Bill also provides for the repeal of the licensing requirements contained in the Employment Agencies Act 1973, and the removal of "outdated" health and safety legislation.

EOC victory for part-timers

In an unprecedented decision in March, the House of Lords upheld the EOC's challenge to the statutory hours thresholds which exclude many part-timers from the right to a redundancy payment and the right to compensation for unfair dismissal. The Lords ruled that the current qualifying rules indirectly discriminate against women and are not justifiable, and so are incompatible with European equality law.

It remains to be seen what legislative measures will be taken to conform with this ruling, although the Government has announced that it is committed to making whatever amendments are necessary.

Pregnant women not the same as sick men

In the latest development on sex discrimination and pregnancy, the Advocate-General recently gave his Opinion in the Webb case. His view is that it is not permissible to compare the treatment of a pregnant woman with that of a sick man for the purposes of applying domestic sex discrimination legislation, and that as pregnancy is a condition unique to women, discrimination against a woman on this ground must be direct discrimination on grounds of sex.

We await with interest the ECJ's decision. While dismissal on the grounds of pregnancy will in future be automatically unfair, this still leaves open the problem of women who are subject to action short of dismissal on pregnancy or maternity grounds.

Pensions equality: clarification from ECJ

By early 1994, a number of the outstanding issues arising from the Barber case had been clarified by the ECJ. The decision in the Coloroll case, however, is still awaited, with hopes that this will put an end to the remaining uncertainties. It is clear, however, that problems and confusion will still reign until the state pension age is equalised and legislation is put in place clarifying the whole issue of pensions and equality between the sexes.

SSP and SMP overhauled

In April the Statutory Sick Pay Act 1994 came into force, placing the entire burden of paying SSP on to employers, except those defined as "small" (that is, those whose national insurance contributions are £20,000 or less). The Act also equalised, at 65, the upper age limit for receipt of SSP.

The new maternity provisions of the TURERA were brought into force on 10 June 1994, and new Regulations were made to meet the pay requirements of the "Pregnant Workers" Directive. In summary, all women with 26 weeks' service at the qualifying date will be entitled to SMP for 18 weeks, and the first six weeks must be paid at the rate of 90% of normal earnings. In addition, employers' rebate on SMP paid out has been cut to 80%, except for "small" employers. The new rights apply only to women who are expecting a baby on or after 16 October 1994.

Compensation limits

As promised, the upper limit for compensation in race discrimination cases was removed by the Race Relations (Remedies) Act 1994. (The Act started life as a Private Member's Bill which was immediately given government support.)

At the time of writing, no announcement had been made about this year's annual review of employment protection payments and whether, or to what extent, there will be an increase in the maximum compensation payable for unfair dismissal.

Sunday trading - round two

The latest Sunday Trading Bill once again sets out to deregulate Sunday trading, albeit only partially. Schedule 3 of the Bill contains complex provisions for the protection of shopworkers who object to working on Sundays, but attempts to extend this protection to job applicants, and to provide for double pay on Sundays, were defeated in the House of Commons. The Bill is expected to be enacted soon.

Transfers and contracting-out: the writing on the wall?

In a series of cases, both from the domestic courts and the ECJ, it has become increasingly clear that most contracting-out exercises - both in the private sector and in the context of compulsory competitive tendering in the public sphere - are subject to the provisions of either the UK's Transfer Regulations or the EEC "Business Transfers" Directive. (For the latest development see Dines and others v Initial Health Care Services Ltd and Pall Mall Services Ltd.) The policy implications are enormous, and there is strong pressure being applied to the Government to "do something about it".

It remains to be seen what exactly will result from the current proposals on revisions to the "Business Transfers" Directive.

Meanwhile, in January, five trade unions issued writs against the Government claiming damages for losses suffered by their members as a result of the UK's past failure to properly implement the "Business Transfers" Directive. These cases relate to contracting-out and compulsory competitive tendering exercises, and are based on the Francovich decision.

UK in breach of European law again

The latest important development on the European law front has been the ECJ's ruling that the UK is in breach of the "Business Transfers" and "Collective Redundancies" Directives, by failing to ensure that workers' representatives are informed and consulted on business transfers and proposed redundancies (a full report of the case appears overleaf). It would appear, therefore, that further legislation is on the cards.

Breach of contract jurisdiction: on its way!

It would have been satisfying to end this article with a postscript stating that the new s.131 Order had been approved. Unfortunately, this was not to be. A new draft Order was laid before Parliament in May, and was scrutinised in Committee on 16 June. The House of Commons approved the Order on 20 June, but it is not due to be approved by the House of Lords until 7 July. We will bring you full details of the Order as soon as it has finally been brought into force ...

Case list

ACAS and others v Grunwick Processing Laboratories Ltd and others [1978] IRLR 38

A J Dunning & Sons (Shop Fitters) Ltd v Jacomb [1973] IRLR 206

Barber v Guardian Royal Exchange Assurance Group [1983] IRLR 240 EAT; [1990] IRLR 240 ECJ

Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317

British Home Stores Ltd v Burchell [1978] IRLR 379

British Labour Pump Co Ltd v Byrne [1979] IRLR 94

British Leyland UK Ltd v Swift [1981] IRLR 91

Coloroll Pension Trustees Ltd v Russell and others IRLB 431

Commission of European Communities v United Kingdom of Great Britain and Northern Ireland Case 61/81 [1982] IRLR 333

Commission of European Communities v United Kingdom of Great Britain and Northern Ireland Case 165/82 [1984] IRLR 29

Danfoss (Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening) [1989] IRLR 532

Defrenne v SABENA [1976] ECR 455

Dekker v Stichting Vormingscentrum voor Jonge Volwassenen (VJV-Centrum) Plus [1991] IRLR 27

Devis & Sons Ltd v Atkins [1977] IRLR 314

Dimbleby & Sons Ltd v National Union of Journalists [1984] IRLR 161

Dines v Initial Health Care Services Ltd and Pall Mall Services Ltd [1994] IRLR 336

Enderby v Frenchay Health Authority and Secretary of State for Health [1993] IRLR 591

Fletcher v Clay Cross (Quarry Services) Ltd [1978] IRLR 361

Francovich v Republic of Italy [1992] IRLR 84

Hayes v Malleable Working Men's Club and Institute and Maughn v North East London Magistrates' Court Committee [1985] IRLR 367

Hayward v Cammell Laird Shipbuilders Ltd [1984] IRLR 463 IT; [1986] IRLR 287 EAT; [1987] IRLR 186 CA; [1988] IRLR 257 HL

Hertz v Aldi Marked K/S [1991] IRLR 31

James v Waltham Holy Cross UDC [1973] IRLR 202

Jenkins v Kingsgate (Clothing Productions) Ltd [1980] IRLR 6 EAT; [1981] 228 ECJ

Johnston v Chief Constable of the Royal Ulster Constabulary [1986] IRLR 263

Lewis Shops v Wiggins [1973] IRLR 205

Litster and others v Forth Dry Dock & Engineering Co Ltd and another [1989] IRLR 161

Macarthys Ltd v Smith [1979] IRLR 316 CA; [1980] IRLR 210 ECJ

Macarthys Ltd v Smith (No.2) [1980] IRLR 209

Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1983] 237 EAT; [1986] IRLR 140 ECJ

Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) (No.2) [1988] IRLR 325 IT; [1989] 459 EAT; [1990] IRLR 481 CA; [1993] IRLR 445 ECJ

Messenger Newspapers Group Ltd v National Graphical Association (1982) [1984] IRLR 397

Pepper v Hart and others [1993] IRLR 33

Polkey v A E Dayton Services Ltd [1987] IRLR 503

R v Central Arbitration Committee ex parte Hy-Mac Ltd [1979] IRLR 461

R v Secretary of State for Employment ex parte Equal Opportunities Commission and another [1994] IRLR 176

R v Secretary of State for Foreign and Commonwealth Affairs ex parte Council of Civil Service Unions and another [1984] IRLR 309 HC; [1984] IRLR 353 CA; [1985] IRLR 28 HL

Rainey v Greater Glasgow Health Board [1987] IRLR 26

Turley v Allders Department Stores Ltd [1980] IRLR 4

Webb v EMO Air Cargo Ltd [1993] IRLR 77

Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27

Wood v United Leeds Hospitals [1974] IRLR 204

Worringham and Humphreys v Lloyds Bank plc [1979] IRLR 440

Employment Protection Act 1975

New collective rights included:

New individual rights included:

A rare intellect?

"Intelligence is a 'special reason justifying a departure' from a customary arrangement for redundancy selection." (IRLIB September 1978)

The Employment Act 1980

Unfair dismissal

Closed shops

Maternity rights

Industrial action

Collective rights

The Employment Act 1982

Industrial action

Union membership and closed shops

Individual rights

Human resources in a new light

"The industrial relations structure in the company is excessively fragmented. Indeed, at the hearing the [trade union] likened the IR manager's office to a brothel, with a queue of impatient men outside and others emerging at regular intervals with smiles on their faces." (IRLIB July 1978)

Pre-feminist ideology?

"The management in this case tried to operate a rule of no talking except 'as might be necessary', which was ignored. The applicant refused to give an undertaking that she would try to improve. She asserted that if an employer engaged women he must expect them to chatter." (IRLIB December 1977)

"Moreover, the tribunal held, 'we could not find that the applicant was in breach of the terms of his contract of service by saying that he did not like working with a woman'." (IRLIB September 1978)

The Employment Act 1988

Industrial action

Closed shop

Trade unions

Members' rights

The Employment Act 1989

Discrimination

Individual rights

The Employment Act 1990

Closed shop

Industrial action

Trade unions

It's the way you say it ...

"Employee told by employer to 'piss off' held to have been dismissed" (IRLIB October 1973).

"Telling an employee to 'fuck off' does not always imply that he is being dismissed" (IRLIB May 1974).

The Trade Union Reform and Employment Rights Act 1993

Trade unions

Industrial action

Maternity rights

Employment particulars

Unfair dismissal

Sex discrimination

Business transfers and redundancies

Institutional changes

Compensating for inflation

"The compensatory award, introduced in 1972, was then limited to 104 weeks' pay or £4,160, equivalent to £27,606 today when uprated by the retail prices index, whichever was the less. The current limit is £11,000. The basic award, introduced in 1976, was subject to a maximum limit of £2,400, equivalent to £8,611 today. The current limit is £6,150" (Michael Forsyth, replying to a parliamentary question, Hansard (HC) 2.2.94, col. 724).

¹ "The worker and the law" (third edition, 1986), Lord Wedderburn, published by Penguin Books.