Delivering fairer workplaces through statutory rights? Enforcing employment rights in Britain

Over the past forty years Britain has experienced dramatic change in the role of legal regulation of the employment relationship. The voluntarist system, which characterized British industrial relations for most of the 20 century, has gone. At its heart was a policy of relative legal abstention, with primacy to, and support for regulation through collective bargaining. Regulation of the employment relationship by means of collective bargaining between employers and unions was far more important than legal regulation through Acts of Parliament. Public policy in Britain no longer gives primacy to collective bargaining. Its coverage has shrunk so only around one third of employees are covered now, compared to over 80% in 1980. Union membership and density have fallen, particularly in the private sector. Protection at work now rests less on collective organisation than on individual legal rights, the number of which has expanded considerably since the 1970s. There is not simply ‘more law’; the nature and scope of legal regulation in Britain has shifted decisively. The move away from supporting collective bargaining as the prime method of regulating the employment relation came under Conservative governments between 1979 and 1997. Although some new statutory rights were introduced, the government’s aim in that period was not to replace workers’ protection through social regulation with protection through legal regulation, but, rather, to increase managerial control and freedom to take unilateral action. The post-1997 Labour governments took a different approach and attempted to provide for the first time ‘a comprehensive framework of minimum employment standards’ (DTI 2004) in order to promote fairness at work. Legal regulatory norms and statutory structures were extended into key areas of the employment relationship, such as pay and working time, which until 1997 had remained largely a matter for voluntary determination. 1 The considerable expansion in statutory rights emerged partly through domestic policy, like the introduction of a National Minimum Wage (NMW) in 1999, and partly as a result of a changed attitude towards the European Union (EU). Significant aspects of the legislative framework derive from the decision of the Labour government, soon after attaining office in 1997, to end the Conservative government’s so-called ‘opt-out’ from the Social Chapter in the EU Maastricht Treaty, and its acceptance of the social chapter of the EU’s Treaty of Amsterdam. These include rights relating to working time and to information and consultation of employees. EU legislation also extended the grounds of