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Tasks for labour law research

Published online by Cambridge University Press:  02 January 2018

B.A. Hepple  and
W.A. Brown
B.A. Hepple
Affiliation:
University of Kent at Canterbury
W.A. Brown
Affiliation:
SSRC Industrial Relations Research Unit, University of Warwick
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Extract

What are the prospects for research in the area of labour law in the 1980s? This article argues that the main concern of research should be with legislative intervention in labour relations and should address itself to two inter-related questions: what lies behind the legislation? and how does the legislation function? We make some suggestions about the methodologies and theoretical perspectives of this research.

The urgent need to focus upon legislation requires little justification in view of the fundamental changes in the content of labour law in the last 17 years, particularly since 1971.

Type
Research Article
Information
Legal Studies , Volume 1 , Issue 1 , March 1981 , pp. 56 - 67
Copyright
Copyright © Society of Legal Scholars 1981

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References

1. Industrial Relations Bill: Consultative Document (5 October 1970), Department of Employment, para. 8.

2. E g the ‘gradualist’ views in the CBI discussion document Trade Unions in a changing world: the challenge for management (February 1980) esp. p. 16; and the views of the tripartite ACAS Council on the recognition provisions, ACAS Annual Report 1978, pp. 22–30 and Annual Report 1979, pp. 22–30. See generally, Lord Wedderburn of Charlton, The New Structure of Labour Law in Britain' (1978) 13 Israel Law Review 435 esp. at 456; and ‘Industrial Relations and the Courts' (1980) 9 IW 65, esp. at 82.

3. P. Mayhew, Under-Secretary of state for Employment, HC Deb, Vol. 976, col. 162, 17 December 1979.

4. This was the expression used by Lord Scarman in Express Newspapers Ltd v McShane [1980] ICR 42 at 65C when rejecting Lord Denning's ‘remoteness’ test for the existence of a trade dispute, which has now been reinstated in respect of certain secondary action by s. 17(3)(b) of the Employment Act 1980.

5. K.W. Wedderburn The Worker and the Law (2nd edn, 1971), pp. 16, 482, introduced this concept to distinguish statutory interventions which build rights into the individual employment relationship from laws which try to regulate collective bargaining.

6. The only empirical evidence we have does not support these views: Daniel, W.W. and Stilgoe, Elizabeth The Impact of Employment Protection Laws (Policy Studies Institute, June 1978)Google Scholar; R. Clifton and C. Tatton-Brown The Impact of Employment Legislation. on Small Firms (D.E. Research Paper No. 6 July 1979); and generally, Linda Dickens, Moira Hart, Michael Jones, Brian Weekes A Response to the Government Working Papers on Amendments to Employment Protection Legislation (SSRC Industrial Relations Research Unit, University of Warwick, Discussion Paper, November 1979) section I.

7. These are listed in B.A. Hepple, J. Hepple, Paul O'Higgins, Paula Stirling Labour Law in Great Britain and Ireland to 1978: A Companion volume to the Bibliography of Literature on British and Irish labour Law (1981). This excludes material in trade union, employers’ association and similar publications, and government publications.

8. Heatons Transport (St Helens) Ltd v TGWU [1973] AC 15; B.A. Hepple (1972) 1 ILJ 197; P.L. Davies (1973) 36 MLR 78; O. Kahn-Freund (1974) 3 ILJ 186 at 186–191.

9. Employment Act, 1980, s. 10.

10. R. Lewis ‘Kahn-Freund and Labour Law: an outline Critique’ (1979) 8 ILJ 202, and ‘Collective Agreements: the Kahn-Freund Legacy’ (1979) 42 MLR 613; Roy Lewis and Jon Clark (eds), Editorial Introduction, Labour Law and Politics in the Weimar Republic: Selected German Writings of Otto Kahn-Freund (forthcoming, 1981) (referred to as Selected German Writings). We are indebted to Roy Lewis and Jon Clark for being allowed to make advance reference to this invaluable work.

11. W.B. Creighton Working Women and the Law (Studies in Labour and Social Law, Vol 3, 1979); as regards the movement towards the Race Relations Act 1968, see Bob Hepple Race, Jobs and the Law in Britain (2nd edn, 1970). There has been a good deal of illuminating historical writing on 19th century legislation, e g J.T. Ward ‘The Factory Movement’in Popular Movements c. 1830–1850 (ed. J.T. Ward, 1970), and G.W. Hilton The Truck System: including a history of the British Truck Acts 1465-1960 (1960), but surprisingly little on 20th century legislation.

12. W.G. Carson ‘Symbolic and Instrumental Dimensions of Early Factory Legislation’ in Crime, criminology and public policy (ed. R. Hood, 1974), pp. 108–38.

13. Brian Bercusson Fair Wages Resolutions (Studies in Labour and Social Law, Vol 2 1978), reviewed by O. Kahn-Freund (1978) 8 ILJ 188. A further example is the synthesis of the historical development of the administration of unemployment benefits by Julian Fulbrook Administrative Justice and the Unemployed (Studies in Labour and Social Law, Vol 1 1978).

14. Unfortunately Sinzheimer's writings have not yet been translated into English. His main labour law works are 2 volumes on The Collective Agreement (1907 and 1908), A Statute on Collective Agreements (1916) and Basic Outlines of Labour Law (1921, rev. 1927). See generally 0. Kahn-Freund ‘Hugo Sinzheimer 1875-1945’ in Selected German Writings, op. cit.

15. See the writings referred to in note 10, above.

16. Brian Weekes, Michael Mellish, Linda Dickens and John Lloyd Industrial Relations and the Limits of Law: the industrial relations effects of the Industrial Relations Act 1971 (Warwick Studies in Industrial Relations) (1975).

17. R.H. Fryer'Redundancy, Values and Public Policy,’ (1973) 4 Industrial Relations Journal 2, and App. 2 in R. Martin and R.H. Fryer Redundancy and Paternalist Capitalism (1973), and ‘The Myths of the Redundancy Payments Act’ (1973) 2 ILJ 1.

18. M. Mellish and N. Collis-Squires ‘Legal and Social Norms in Discipline and Dismissal’ (1977) 6 ILJ 164.

19. See the valuable analysis by Laurence Lustgarten ‘The new meaning of discrimination’ [1978] Public Law 178, and ‘Problems of Proof in employment discrimination cases’ (1977) 6 ILJ 212.

20. P. Glucklich, M. Povall, M. W. Snell and A. Zell ‘Equal pay experience in 25 firms’ (1976) 84 D.E. Gazette 1337, and ‘Equal pay and opportunity’ (1978) 86 D.E. Gazette 777.

21. Quoted by D.H. Blelloch A Historical Survey of Factory Inspection in Great Britain’ (1938) 38 International Labour Review 614.

22. For a valuable recent examination see Peter W.J. Bartrip ‘Safety at Work the Factory Inspectorate in the Fencing Controversy, 1833–1857’ (Centre for Socio-legal Studies, Oxford, Working Paper No 4, March 1979). Cf. W.G. Carson ‘White Collar Crime and the Enforcement of Factory Legislation’ (1970) 10 British Journal of Criminology 383 on the reluctance of the 20th century inspectorate to prosecute.

23. Cf. Bob Hepple Race, Jobs and the Law in Britain (2nd edn, 1970), chap. 8.

24. B. Chiplin and P.J. Sloane ‘Sexual discrimination in the labour market’ (1974) 12 BJIR 371, ‘Male and Female earnings differences: A further analysis’ (1976) 14 BJIR 080, and Sex Discrimination in the Market Place (1976).

25. G.S. Becker The Economics of Discrimination (1973).

26. J.F. Madden The Economics of Sex Discrimination (1973).

27. E g Jenny Phillips ‘Economic Deterrence and the Prevention of Industrial Accidents’ (1976) 5 IW 148.

28. M. Woodhall ‘Investment in industrial training: an assessment of the effects of the Industrial Training Act on the volume and cost of training’ (1974) 12 BJIR 71.

29. Op. cit. note 16, above.

30. Linda Dickens ‘Unfair dismissals applications and the Industrial Tribunal System’ (1978-9) 9 Industrial Relations Journal 4.

31. A.W.J. Thomson and S.R. Engelman The Industrial Relations Act: a review and analysis (1975).

32. Colin Crouch The Politics of Industrial Relations (1979).

33. Michael Moran The Politics of Industrial Relations: the origins, life and death of the 1971 Industrial Relations Act (1977); cf. W.E.J. McCarthy and N.D. Ellis Management by agreement: an alternative to the Industrial Relations Act (1973).

34. Op. cit. note 17, above.

35. E g Keith Middlemas Politics in Industrial Society: the British Experience since 1911 (1979).

36. Report of the Committee of Inquiry on Industrial Democracy (Chairman: Lord Bullock) Cmnd. 6706 (January 1977).

37. Cf. the subsequently published study by Christopher Brookes Boards of Directors in British Industry (D.E. Research Paper No. 7, August 1979).

38. Eric Batstone and P.L. Davies Industrial Democracy: European Experience (1976); cf. David Marsden Industrial Democracy and industrial control in West Germany, France and Britain (D.E. Research Paper No. 4, September 1978).

39. O. Kahn-Freund ‘On Uses and Misuses of Comparative Law’ (1974) 37 MLR 1 at 27.

40. E g the works of the Comparative Labour Law Group (B. Aaron, K.W. Wedderburn, X. Blanc-Jouvan, G. Guigni, T. Ramm and F. Schmidt), Industrial conflict: a comparative legal survey (1972), and Discrimination in employment: a study of six countries (1978).

41. S.R. Parker, C.G. Thomas, N.D. Ellis and W.E.J. McCarthy Effects of the Redundancy Payments Act (1971).

42. Note 6, above.

43. Note 6, above.

44. O. Kahn-Freund ‘The Tangle of the Truck Acts’ (lM9) 4 Industrial Law Review 2; Selected Writings (1978), p. 154.

45. A recent example is to be found in the provisions of the Employment Act 1980, s. 8 (exclusion of rights in small firms) which appear to ignore the results of the surveys referred to in note 6.