THE LAW OF INDUSTRIAL CONFLICT

INDUSTRIAL RELATIONS IN PRACTICE General Editor: Jim Matthewman

Industrial Relations in Practice is a new series for personnel managers, union negotiators, employees, welfare advisers and lawyers. With an emphasis on current practice in leading British organisations and trade unions, the series takes an overall independent stance, with titles aimed at both sides of industry. The various authors, who have been selected from management, independent research groups and labour organisations, address themselves to topics of immediate and practical concern to the work-force of today and those responsible for its management.

Published titles

Edward Benson A GUIDE TO REDUNDANCY LAW THE LAW OF INDUSTRIAL CONFLICT

Alastair Evans and Stephen Palmer NEGOTIATING SHORTER WORKING HOURS

Susan M. Shortland MANAGING RELOCATION

Forthcoming titles

Gary Bowker DISCRIMINATION AT WORK

Philip James UNDERSTANDING SHOP STEWARDS

Susan Johnstone and James Hillage CONTROLLING INDUSTRIAL ACTION

David Murray-Bruce PROMOTING EMPLOYEE HEALTH

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The Law of Industrial Conflict

Edward Benson

M MACMILLAN PRESS

© Edward Benson 1988

Softcover reprint of the hardcover 1st edition 1988 978-0-333-41913-7

All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission.

No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright Act 1956 (as amended), or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 33-4 Alfred Place, London WClE 7DP.

Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages.

First published 1988

Published by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world

Typeset by Wessex Typesetters (Division of The Eastern Press Ltd) Frome, Somerset

British Library Cataloguing in Publication Data Benson, Edward The law of industrial conflict.­(Industrial relations in practice) 1. Labour laws and legislation-Great Britain I. Title II. Series 344.104'1 KD3040 ISBN 978-1-349-08804-1 ISBN 978-1-349-08802-7 (eBook) DOI 10.1007/978-1-349-08802-7

Contents

Table of Cases

Table of Statutes

Acknowledgements

Abbreviations

Introduction

PART I INDIVIDUAL RIGHTS

1 The Contract of Employment The contract of employment

2 The Employment Legislation Unfair dismissal Redundancy payments Discrimination and equal pay Wages Councils

PART II COLLECTIVE BARGAINING

3 Voluntary Assistance with Collective Bargaining Employee involvement ACAS The role of the TUC

4 Recognition Trade unions

5 The Right to Time OtT Work Time off for trade union duties Safety representatives Time off for trade union activities

6 The Right to Belong to a Union Dismissal Action short of dismissal

v

viii

xxiv

xxvi

xxvii

xxix

3 4

12 12 21 22 27

31 31 34 38

41 42

47 48 56 57

61 62 71

Vl Contents

7 Exclusion or Expulsion from a Union 77 Union rules 77 Natural justice 81 Unreasonable exclusion or expulsion 84 Independent Review Committee 91

8 The Right not to Belong to a Union 93 Unfair dismissal 93 Redundancy 106 Action short of dismissal 106 Union labour only practices 108

9 Disclosure of Information 111 Information to be disclosed 112 Restrictions on general duty to disclose 118 Complaint of failure to disclose 122

10 Consulting over Redundancies and Business Transfers 127 Minimum periods of consultation 127 Commencing consultation 128 Form of consultation required 129 Substance of consultation required 130 Employer's defence 132 Protective awards 136 Transfer of undertakings 140

11 Collective Agreements 143 Enforceability 146 Breach of collective agreements 159

PART III INDUSTRIAL ACTION

12 Voluntary Assistance in Trade Disputes 167 TheTUC 167 ACAS 168

13 Effect of Industrial Action on Employment Protection Rights 173

Uniair dismissal 175

14 Liabilities Arising out of Industrial Action 191 The economic torts 191 Breach of union rules 204 Picketing 208

Contents Vll

15 Immunities from Tort Action 214 The economic torts 214 Ballots before industrial action 230 Picketing 236

16 Remedies 242 Liability of trade unions 242 Interlocutory injunctions 247 Remedies for breach of injunctions 255 Claims for damages 256

17 Criminal Law 260 Obstructing the highway 260 The Conspiracy and Protection of Property Act 1875 261 Violence 262 The role of the police 263

index 267

Table of Cases

ACAS v. Grunwick Processing Laboratories and others [1978] IRLR 38 34

Adlam and others v. Salisbury and Wells Theological College unreported, EAT 735/84 75

Allen v. Flood [1898] AC 1 193

Allen v. Thorn Electrical Industries Ltd [1967] 2 All ER 1137, [1967] 3 WLR 858, [1968] 1 QB 487 150, 153

Amalgamated Society of Boilermakers, Shipwrights, Blacksmiths & Structural Workers v. George Wimpey Ltd

[1977] ITR 215, [1977] IRLR 95 138 Amalgamated Society of Carpenters v. Braithwaite and others

[1922] 2 AC 440 78 American Cyanamid Co. v. Ethicon Ltd

[1975] AC 396, [1975] 1 AllER 504, [1975] 2 WLR 316 249, 251 Annamunthodo v. Oilfields Workers Trade Union

[1961] AC 945, [1961] 3 AllER 621 82 Arrowsmith v. Jenkins

[1963] 2 QB 561 260 Artisan Press Ltd v. Srawley and Parker

[1986] ICR 328, [1986] IRLR 126 70 Ashford and another v. ASTMS

[1973] ICR 296 96 Ashley v. Ministry of Defence

[1984] IRLR 57 52, 54 Associated News Group Ltd and others v. Wade

[1979] 1 WLR 697, [1979] ICR 664, [1979] IRLR 201 200 Associated Provincial Picture Houses Ltd v. Wednesbury

Corporation [1948] 1 QB 223, [1947] 2 AllER 680 111

Association of Patternmakers and Allied Craftsmen v. Kirvin Ltd [1978] IRLR 318 129, 134

Association of Scientific, Technical and Managerial Staffs v. Hawker Siddeley Aviation Ltd

[1977] IRLR 418 139 Austin Rover Group Ltd v. AUEW (TASS)

[1985] IRLR 162 255

B&S Contracts and Design Ltd v. Victor Green Publications Ltd [1984] ICR 419 198

Bailey v. BP Oil (Kent Refinery) Ltd [1980] ICR 642, [1980] IRLR 287 151

viii

Table of Cases

Bakers' Union v. Clarks of Hove Ltd [1979] 1 All ER 152, [1978] ICR 1076, [1978] IRLR 366

Baldwin v. Laporte Industries Ltd

lX

132, 133, 134, 136

unreported, EAT 169/82 101 Barley and others v. Arney Roadstone Corporation

[1977] IRLR 299 66 Barratt Developments (Bradford) Ltd v. UCATT

[1978] ICR 319, [1977] ITR 478, [1977] IRLR 403 128 Barrett v. National Coal Board

[1978] ICR 1102 156 Beal v. Beacham Group Ltd

[1981] IRLR 192 50, 51, 54 Beetham v. Trinidad Cement Ltd

[1960] AC 132, [1960] 1 AllER 274, [1960] 2 WLR 77 217 Bernard Matthews pic v. Rowland

unreported, 25.4.82 EAT 14/82 186 Bond v. CA V Ltd

[1983] IRLR 360 10 Boulting v. Association of Cinematograph Television and Allied

Technicians [1963] 1 AllER 716, [1963] 2 WLR 529, [1963] 2 QB 606 192

Bowman & Son v. Blyth [1983] IRLR 139 157

Bradley v. Edward Ryde & Sons [1979] ICR 488 66

Braithwaite v. Electrical, Electronic and Telecommunications Union and another

(1969] 2 All ER 859 77, 80 Brassington v. Cauldron Wholesale Ltd

[1978] ICR 405, [1977] IRLR 479 76 Brimelow v. Casson

[1924] 1 Ch 302 195 British Airports Authority v. Ashton

[1983] ICR 696, [1983] IRLR 287 240 British Airways Board v. Clark and Havill

[1982] IRLR 238 75 British Airways Engine Overhaul Ltd v. Francis

[1981] ICR 278, [1981] IRLR 9 58 British Broadcasting Corporation v. Hearn

[1978] 1 AllER 111, [1977] ICR 685, [1977] IRLR 273 219, 221 British Gas Corporation v. Wignall and Stafford

unreported, EAT 36/83 51 British Home Stores Ltd v. Burchell

[1978] IRLR 379, [1978] ITR 560 16 British Industrial Plastics Ltd v. Ferguson and others

[1940] 1 All ER 479 193 British Labour Pump Co. Ltd v. Byrne

[1979] ICR 347, [1979] IRLR 94 17

X Table of Cases

British Leyland UK Ltd v. McQuilken [1978] IRLR 245

Broadbent v. Crisp [1974] 1 All ER 1052, [1974] ICR 248, [1974] ITR 147

Brooks & Son v. Skinner [1984] IRLR 379

Broome v. Director of Public Prosecutions [1974] AC 587, [1974] 1 AllER 314, [1974] IRLR 26

Burdett-Coutts and others v. Hertfordshire County Council [1984] IRLR 91

Burroughs Machines Ltd v. Timmoney and others [1977] IRLR 404

Burton Group Ltd v. Smith [1977] IRLR 351

CAC Award no. 78/353 CAC Award no. 78/353A CAC Award no. 79/300 CAC Award no. 79/438 CAC Award no. 79/439 CAC Award no. 79/440 CAC Award no. 79/451 CAC Award no. 79/484 CAC Award no. 79/507 CAC Award no. 79/571 CAC Award no. 801152 CAC Award no. 801171 CAC Award no. 80/179 CAC Award no. 80/26 CAC Award no. 80/4 CAC Award no. 80/65 CAC Award no. 80/86 CAC Award no. 8113 CAC Award no. 82/102 CAC Award no. 82/16 CAC Award no. 82/18 CAC Award no. 82/4 CAC Award no. 84115 CAC Award no. 85/9 CAC Award no. 86/1 Cadoux v. Central Regional Council

151

43

160

211, 239, 260

9, 161

163

149

117 116 120 120 120 120 125 116 121 112

117, 122 120

113, 118 122 123 113 123 121 117 113 122 114

115, 120 117, 121 113, 115

[1986] IRLR 131 161, 162 Camden Exhibition & Display Ltd v. Lynott

[1965] 3 AllER 28, [1965] 3 WLR 763, [1966] 1 QB 555 157, 158 Camden Nominees Ltd v. Forcey and another

[1940] 2 AllER 1, [1940] Ch 352 195 Camellia Tanker Ltd v. International Transport Workers' Federation

[1976] ICR 274, [1976] IRLR 183 193

Table of Cases XI

Carter v. Law Society [1973] ICR 113 43

Carter v. Wiltshire County Council [1979] IRLR 331 73

Cayne v. Global Natural Resources pic [1984] 1 All ER 225 251

Chant v. Aquaboats Ltd [1978] 3 All ER 102, [1978] ICR 643 59

Chauhan v. Ford Motor Company unreported, EAT 224/84 101

Cheall v. APEX [1983] IRLR 215 39, 82, 83

Cheall v. Vauxhall Motors Ltd [1979] IRLR 253 76

City & Hackney Health Authority v. National Union of Public Employees

[1985] IRLR 252 213 City of Birmingham District Council v. Beyer

[1978] 1 All ER 910, [1977] IRLR 211 65 Clark v. NATSOP A (SOGAT '82)

[1986] ICR 12 85 Clarke and 640 others v. Chadburn and others

unreported, 25.5.84 Ch D 205, 250 Clarke and others v. NUM (Nottingham Area)

[1984] IRLR 350 206 Clay Cross (Quarry Services) v. Fletcher

[1979] 1 All ER 474, [1979] ICR 47, [1978] IRLR 361 26 Coates and Venables v. Modern Methods and Materials Ltd

[1982] 3 AllER 946, [1982] ICR 763, [1982] IRLR 318 177, 180, 182, 183

Colwyn Borough Council v. Dutton [1980] IRLR 420 19

Conway v. Wade [1906] AC 506 217, 222

Cook v. Thomas Linnell & Sons [1977] ICR 770, [1977] ITR 330, [1977] IRLR 132 14

Cotter v. Lynch Bros Ltd [1972] 3 AllER 809, [1972] ICR 263, [1972] IRLR 20 63

Cotter v. National Union of Seamen [1929] 2 Ch 58 206

Council of the City of Cardiff v. Conde [1978] IRLR 218 160

Courtaulds Ltd v. Lees and Bullivant unreported, EAT 437/81 58

Courtaulds Northern Spinning Ltd v. Moosa [1984] ICR 218, [1984] IRLR 43 187

Cresswell and others v. Board of Inland Revenue [1984] IRLR 190 11

xii Table of Cases

Crofter Hand-Woven Harris Tweed Co. Ltd and others v. Veitch and another

[1942) AC 435 203 Curry v. Harlow District Council

[1979) ICR 769, [1979) IRLR 269 98

Dawkins v. Antrobus (1881) 17 Ch D 615 78

Depledge v. Pye Telecommunications Ltd [1981) ICR 82, [1980) IRLR 390 53

Diamond v. Courtaulds Ltd [1979) IRLR 449 55

Dimbleby & Sons Ltd v. National Union of Journalists [1984) ICR 386, [1984) IRLR 161 199, 208, 219, 220, 223,

224, 226, 251, 252 Dixon and Shaw v. West Ella Developments Ltd

[1978) ICR 856, [1978) ITR 235, [1978) IRLR 151 58 Doyle v. Westminster Press

unreported, EAT 201/83 49 Drake v. Morgan

[1978) ICR 56 206 Drew v. St Edmondsbury Borough Council

[1980) ICR 513, [1980) IRLR 459 64 Duport Steels Ltd v. Sirs

[1980) 1 AllER 529, [1980) ICR 161, [1980) IRLR 116 222, 252

East Lindsay District Council v. Daubney [1977) ICR 566, [1977) ITR 359, [1977) IRLR 181 17

Edwards v. Skyways Ltd [1964) 1 AllER 494, [1964) 1 WLR 349 149

Edwards v. Society of Graphical & Allied Trades [1970) 3 WLR 713, [1970) 3 AllER 689 82

Elsey v. Smith [1983) IRLR 292 261

Emerald Construction Co. Ltd v. Lowthian and others [1966) 1 AllER 1013, [1966) 1 WLR 691 194

Esterman v. NALGO [1974) ICR 625 207

Examite Ltd v. Whittaker and others [1977) IRLR 312 223

Express & Star Ltd v. NGA and Lowe (CA) [1986) IRLR 222 256

Express & Star Ltd v. NGA and others [1985) IRLR 455 245

Express Newspapers Ltd v. Keys [1980) IRLR 247 221

Express Newspapers Ltd v. McShane and another (1980) AC 672, (1980) 1 AllER 65, [1980) IRLR 35 191, 221, 222, 226

Fairfax v. British Gas unreported, EAT 191/80

Falconer v. NUR and ASLEF [1986] IRLR 331

Table of Cases

Faramus v. Film Artistes' Association [1964] AC 925, [1964]1 AllER 25

Farmeary v. Vetinerary Drug Co. Ltd [1976] IRLR 322

Farthing v. Ministry of Defence [1980] IRLR 402

xiii

53

197

80

66,71

26 Faust and others v. Power Packing Casemakers Ltd

[1983] IRLR 117 Field v. Receiver of the Metropolitan Police

[1907]2 KB 853

59, 178, 192

262 Fisher and others v. York Trailer Co. Ltd

[1979] ICR 834, [1979] IRLR 386 Ford Motor Co. Ltd v. AEF

[1969]2 AllER 481, [1969]1 WLR 339, [1969]2 QB 303 Ford Motor Co. Ltd v. Hudson and others

[1978] ICR 482, [1978] IRLR 67 Foss v. Harbottle

2 Hare 461 Frost v. Clark & Smith

[1973] IRLR 216

Gallagher and another v. Post Office

177

146

20

205,206

42

[1970] 3 All ER 712 151 Galt v. Philp

[1984] IRLR 156 262 Gascol Conversions Ltd v. Mercer

[1974] ICR 420, [1974] IRLR 155 7, 155, 156 Gaumont-British Picture Corporation Ltd v. Alexander

[1936] 2 All ER 1686 10 Gayle v. John Wilkinson & Sons Ltd

[1978] ICR 154, [1977] IRLR 208 97 General & Municipal Workers' Union v. Wailes Dove Bitumastic Ltd

[1977] IRLR 45 127 General & Municipal Workers' Union (MATSA) v. British Uralite

Ltd [1979] IRLR 409 130, 131

General & Municipal Workers' Union (MATSA) v. British Uralite Ltd (No.2)

[1979] IRLR 412 138 General Aviation Services v. Transport & General Workers' Union

[1976] IRLR 224 246 Gibbons v. Associated British Ports

[1985] IRLR 376 163 GKN Sankey Ltd v. National Society of Metal Mechanics

[1980] IRLR 8 128, 138

xiv Table of Cases

Goodfellow v. NATSOPA [1985) IRLR 3 86, 87

Gorse v. Durham County Council [1971] 2 All ER 666 11

Graham v. ABF Ltd [1986) IRLR 90 16

Gray Dunn & Co. Ltd v. Edwards [1980) IRLR 23 160

Green (E) & Son (Castings) Ltd and others v. ASTMS and another [1984) IRLR 135 128, 130, 131, 136

Grogan v. British Railways Board unreported, EAT 505177 74

Gunton v. London Borough of Richmond-upon-Thames [1980) 3 AllER 577, [1980) ICR 755, [1980) IRLR 321 150

GWK Ltd v. Dunlop Rubber Co. Ltd (1926) 42 TLR 593 193

Hadmor Productions Ltd and others v. Hamilton and others [1981) 2 AllER 724, [1981) ICR 690, [1981) IRLR 210 193, 200, 202,

204,215,219,224,243,250 Hall-Raleigh v. Ministry of Defence

unreported, EAT 3179 58 Hamish Armour v. Association of Scientific, Technical & Managerial

Staffs [1979) IRLR 24 134, 135

Harold Stephen & Co. Ltd v. Post Office [1977) 1 WLR 1172 253

Hazells Offset Ltd v. Luckett [1977) ITR 298, [1977) IRLR 430 19

Heath and another v. Longman (J.F.) (Meat Salesmen) Ltd [1973) 2 AllER 1228, [1973) ICR 407, [1973) IRLR 214 175, 179

Heatons Transport (St Helens) Ltd v. Transport & General Workers' Union

[1973) AC 15, [1972) 3 AllER 101, [1972) IRLR 25 245, 246 Henthorne and another v. CEGB

[1980) IRLR 361 10 Hey v. Yorkshire Society of Textile Craftsmen

[1973) ITR 204 88 Highlands Fabricators Ltd v. McLaughlan

[1984) IRLR 482 184, 186 Hill v. C. A. Parsons & Co. Ltd

[1972) 1 Ch 305, [1971) 3 WLR 995, [1971) 3 AllER 1345 8 Himpfen v. Allied Records Ltd

[1978) ICR 684, [1978) ITR 201, [1978) IRLR 154 95 Hindle Gears Ltd v. McGinty and others

[1984) IRLR 477 181, 183 Home Counties Dairies v. Woods

[1977) 1 AllER 869, [1977) ICR 463, [1976) ITR 322 94

Table of Cases XV

Home Delivery Services Ltd v. Shackcloth [1984] IRLR 470 101

Hood, Ottway and McNeil v. Cory King Towage unreported, COlT 105, 106

Howard v. National Graphical Association [1984] IRLR 489 90, 91

Howitt Transport Ltd and another v. Transport & General Workers' Union (No. 2)

[1973] IRLR 25 255 Hubbard and others v. Pitt and others

[1975]3 AllER 1, [1975]3 WLR 201, [1975] ICR 308 212 Huntley v. Thornton and others

[1957]1 All ER 234, [1957]1 WLR 321 204, 220 Hynds v. Spillers-French Ltd

[1974] ITR 261, [1974] IRLR 281 101

International Sports Co. Ltd v. Thomson [1980] IRLR 340 17

Irani v. Southampton and South-West Hampshire Health Authority [1985] IRLR 203 8

James v. Waltham Holy Cross UDC [1973] ICR 398, [1973] ITR 467, [1973] IRLR 202 17

Jeffrey v. Laurence Scott & Electromotors Ltd [1977] IRLR 466 98, 99

Jenkins v. Kingsgate (Clothing Productions) Ltd [1981]1 WLR 1485, [1981] ICR 715, [1980] IRLR 6 26

Joel and another v. Cammell Laird (Ship-repairers) Ltd [1969] ITR 206 154

John v. Rees and others [1969] 2 All ER 274 18

Jones v. Associated Tunnelling Co. Ltd [1981] IRLR 477 6, 154

Joshua Wilson & Bros Ltd v. USDA W [1978]3 AllER 4, [1978] ICR 614, [1978] IRLR 120 45

Kavanagh v. Hiscock [1974] 2 All ER 177, [1974] ICR 282 265

Kelly v. NATSOPA (1915) 84 LJKB 2236 78

Kenny v. Vauxhall Motors Ltd unreported, 19.2.85 Court of Appeal 4, 159

Kent County Council v. Gilham [1985] IRLR 18 9

Laffin v. Fashion Industries (Hartlepool) Ltd [1978] IRLR 488 187

Lakhani v. Hoover Ltd [1978] ICR 1063 97

xvi

Lakhani v. NUGMW unreported

Table of Cases

Larkin v. Belfast Harbour Commissioners [1980] ICR 2114

Larkin and others v. Long [1915] AC 814

Lawlor v. Union of Post Office Workers [1965] Ch 712, [1965] 1 All ER 353

Leary v. National Union of Vehicle Builders [1971] Ch 34, [1970] 3 WLR 434, [1970] 2 AllER 713

Lee v. Showmen's Guild of Great Britain [1952] 1 AllER 1175

Leigh v. National Union of Railwaymen [1969] 3 All ER 1249

Leyland Vehicles Ltd v. Jones [1981] ICR 428, [1981] IRLR 269

London Transport Executive v. Clarke [1981] IRLR 166, [1981] ICR 355

Lowndes v. Keaveney [1903] 2 IR 82

Lumley v. Gye (1853) 2 E&B 216, 22 L.J.Q.B. 463, 1 W.R. 432

Lyon and Scherk v. StJames' Press Ltd [1976] IRLR 215

Lyons (J) & Sons v. Wilkins [1896] 1 Ch 601

McCalden v. National Union of Journalists unreported, EAT 590177

McColm v. Agnew & Lithgow Ltd [1976] IRLR 14

McCormack v. Shell Chemicals Ltd [1979] IRLR 40

McCormick v. Horsepower Ltd [1981] 2 AllER 746, [1981] ICR 535, [1981] IRLR 217

McGhee v. British Midland Road Services Ltd [1985] IRLR 198

McGhee v. Transport & General Workers' Union [1985] IRLR 198

McGregor and others v. GMBATU unreported, COlT 3267/84

Mcinnes v. Onslow Fane and another [1978] 1 WLR 520, [1978] 3 AllER 211

Marina Shipping Ltd v. Laughton [1982] 1 AllER 481, [1982] ICR 215, [1982] IRLR 20

Marley v. Forward Trust Group Ltd [1986] IRLR 369

Marley Tile Co. Ltd v. Shaw [1980] ICR 72, [1980] IRLR 25

80

240

217

81

84

78

77

96,97

8

209

192, 198

64,74

211, 212

88

20

55

181, 183, 185

102

86

26

81,82

225

150, 152

65

Table of Cases xvii

Marriott v. Oxford & District Co-operative Society [1969] 3 WLR 984, [1969] 3 AllER 1126, [1969] ITR 377 14

Marsden and others v. Fairey Stainless Ltd [1979] IRLR 103 184

Martin v. Scottish Transport & General Workers' Union [1952] 1 All ER 691 80

Maund v. Penwith District Council [1984] IRLR 24 63

Meade v. Haringey Borough Council [1979] 2 AllER 1016, [1979] 1 WLR 637, [1979] ICR 494 201, 253

Mears v. Safecar Security Ltd [1982] ICR 626, [1982] IRLR 183 5, 7

Menzies v. Smith & McLaurin Ltd [1980] IRLR 180 52

Mercury Communications Ltd v. Scott-Garner and another [1984] ICR 74, [1983] IRLR 494 219, 220, 252, 253

Merkur Island Shipping Corporation v. Laughton and others [1983] IRLR 218 197, 198, 223, 224, 225

Mersey Docks & Harbour Co. v. Verrinder and others [1982] IRLR 152 212, 239

Messenger Newspapers Group Ltd v. NGA [1984] ICR 345, [1984] IRLR 397 210,213,217,228,237,239, 256,257

Metropolitan Borough of Solihull v. National Union of Teachers [1985] IRLR 211 194, 250

Midland Cold Storage Company v. Turner [1972] ICR 230, [1972] 3 All ER 773 42, 43

Midland Plastics Ltd v. Till and others [1983] ICR 118, [1983] IRLR 9 178

Ministry of Defence v. Crook and Irving [1982] IRLR 488 53, 54

Mogul Steamship Co. Ltd v. McGregor, Gow & Co. and others [1892] AC 25 203

Monsanto pic v. Transport & General Workers' Union [1986] IRLR 406 232

Monterosso Shipping Co. Ltd v. International Transport Workers' Federation

[1982] ICR 675, [1982] IRLR 468 147 Moorcock (The)

(1889) 14 PD 64 153 Mordecai v. Jacob Beatus Ltd

[1975] IRLR 170 155 Moss and others v. McLachlan

[1985] IRLR 76 264

Nagle v. Fielden [1966] 2 QB 633, [1966] 1 AllER 689

NALGO v. Bolton Corporation [1943] AC 166, [1942] All ER 425

81

217

xviii Table of Cases

NALGO v. National Travel Ltd (1978] ICR 598

Nasse v. Science Research Council (1978] IRLR 352

National Coal Board v. Galley

129

72

(1958] 1 AllER 91, (1958] 1 WLR 16 152, 192 National Coal Board v. National Union of Mineworkers and others

(1986] IRLR 439 147, 151 National Coal Board v. Ridgway and Fairbrother

(1986] IRLR 379 63, 72,75 National Graphical Association v. Howard

(1983] IRLR 442 National Union of Dyers, Bleachers & Textile Workers v. Bradbury

(J) & Co. (Saddleworth) Ltd

88,89

unreported, EAT 557/81 128, 139 National Union of Gold, Silver & Allied Trades v. Albury Bros Ltd

(1979] ICR 84, (1978] IRLR 504 45 National Union of Taylors & Garment Workers v. Charles Ingram &

Co. Ltd (1977] ICR 530, (1977] ITR 285, (1977] IRLR 147

National Union of Teachers v. Avon County Council (1978] ICR 626, (1978] IRLR 55

National Vulcan Engineering Insurance Group v. Wade [1978] 3 AllER 121, [1978] ICR 800, [1978] IRLR 225

NATSOPA v. Kirkham (1983] IRLR 70

Naylor and others v. Orton & Smith Ltd and another (1983] ICR 665, (1983] IRLR 233

Neale v. County Council of Hereford and Worcester (1986] IRLR 168

Nelson and Woolett v. Post Office (1978] IRLR 548

Nethermere (St Neots) Ltd v. Gardiner and Taverner (1984] IRLR 240

New Venture Carpets Ltd v. Vincent and others unreported, 19.3.84 EAT 733/83

News Group Newspapers and others v. SOGAT '82 unreported, 10.2.86 Q.B.D.

44,46

131

26

86,88,89

182

15

155

4

179, 182

256 News Group Newspapers and others v. SOGAT '82 and others

(1986] IRLR 227 42,239 News Group Newspapers and others v. SOGAT '82 and others

(1986] IRLR 337 202,209,210,215,238,247,252, 254 Northbrook Laboratories Ltd v. King and Sands

(1984] IRLR 200 NWL Ltd v. Woods

(1979] 3 AllER 614, (1979] 1 WLR 1294, (1979] IRLR 217

210,212,221

217, 219, 222, 251, 252

Table of Cases

O'Kelly and others v. Trusthouse Forte pic [1983] IRLR 369, [1983] ICR 728

Partington v. NALGO [1981] IRLR 537

Pepper & Hope Ltd v. Daish [1980] IRLR 13

Pickstone and others v. Freemans pic [1986] IRLR 335

Piddington v. Bates [1960] 3 AllER 660, [1961] 1 WLR 162

Porter v. National Union of Journalists [1979] IRLR 404

Post Office v. Crouch and another [1974] ICR 378, [1974] ITR 136, [1974] IRLR 22

Powley v. ACAS and others [1977] IRLR 190

Presho v. Department of Health and Social Security [1984] IRLR 74

Pritchett and Dyjasek v. Mcintyre (J) Ltd [1986] IRLR 97

Quinn v. Leatham [1901] AC 495

R. v. CAC ex parte BTP Tioxide

XIX

4

207

153

24

263,264

207

73, 74

34

176

17

203

[1981] ICR 483, [1982] IRLR 60 111, 114, 115, 123 R. v. CAC ex parte Civil Service Union

[1980] IRLR 274 120, 125 R. v. Clark (No. 2)

[1964] 2 QB 315 209 R. v. Jones and others

[1974] ICR 310, [1974] IRLR 117, [1974] Crim LR 663 261, 262 R. v. Secretary of State for Foreign & Commonwealth Affairs ex

parte CCSU [1984] IRLR 28 61

Radford v. National Society of Operative Printers, Graphical & Media Personnel

[1972] ICR 484 79, 82 Rainey v. Greater Glasgow Health Board

[1985] IRLR 414 26 Rasool v. Hepworth Pipe Co. Ltd

(1980] ICR 495, [1980] IRLR 88 59 Rasool and others v. Hepworth Pipe Co. Ltd (No. 2)

[1980] IRLR 137 177, 178 RHP Bearings v. Brookes

[1979] IRLR 452 51, 54, 58 Richard Read (Transport) Ltd and another v. NUM (South Wales

Area) [1985] IRLR 67 243, 254, 255, 256

XX Table of Cases

Rigby v. Ferodo Ltd unreported, 29.1.86 Q.B.D. 4, 159, 160

Robb v. Leon Motor Services Ltd (1978] ICR 506, (1978] IRLR 26 73, 74

Robertson v. British Gas Corporation (1983] ICR 351 6, 162

Rodwell v. Thomas (1944] 1 AllER 700, (1944] KB 596 150

Roebuck and O'Brien v. National Union of Mineworkers (Yorkshire Area)

(1977] ICR 573 82, 83, 84 Rookes v. Barnard

(1964] AC 1129, (1964] 1 AllER 367, (1964] 2 WLR 269 191, 199, 201, 202,216,257

Rothwell v. APEX (1976] ICR 211, (1975] IRLR 375

Royle v. Trafford Borough Council (1984] IRLR 184

Saggers v. British Railways Board (No. 1)

39,81

10,11

(1977] ICR 809, (1977] 266 101 Sakals v. United Counties Omnibus Co. Ltd

[1984] IRLR 474 101, 107 Santer v. National Graphical Association

[1973] ICR 60 79 Saunders v. Bakers, Food and Allied Workers' Union

[1986} IRLR 16 85, 90, 91 Saxton and others v. National Coal Board

[1970] ITR 196 156 Scala Ballroom (Wolverhampton) Ltd v. Ratcliffe

[1957] 1 WLR 321 204 Secretary of State for Employment v. ASLEF and others (No. 2)

[1972] 2 AllER 949, [1972] ICR 19, [1972] 2 QB 455 9, 10, 191, 192 Shannon v. Michelin (Belfast) Ltd

(1981] IRLR 505 63 Sherard v. AUEW

[1973] ICR 421, [1973] IRLR 188 192 Shipping Company Uniform Inc v. International Transport Workers'

Federation (1985] IRLR 71 225, 233, 254

Shirlaw v. Southern Foundries Ltd [1932] 2 KB 206 153

Sim v. Rotherham Metropolitan Borough Council [1986]IRLR 391 11

Simmons v. Hoover Ltd [1977] 1 AllER 775, [1977] ICR 61, [1976] IRLR 266 8, 189, 191

Singh v. British Steel Corporation [1974] IRLR 131 149, 154, 160, 161

Table of Cases xxi

Smith v. Chairman and Councillors of Hayle Town Council [1978] ICR 996, [1978] IRLR 413 62

Smith v. Thomasson (1891) 62 LT 68 261

Sood v. GEC Elliott Process Automation Ltd [1980) ICR 1, [1979] IRLR 416 50, 51, 58

South Wales Miners' Federation and others v. Glamorgan Coal Co. Ltd [1905) AC 239 195

Spillers-French (Holdings) Ltd v. USDAW [1980) ICR 31, [1979] IRLR 339 131, 136, 137, 139

Spring v. National Amalgamated Stevedores' and Dockers' Society [1956] 1 WLR 585, [1956] 2 AllER 221 39

Stewart v. Craig Shipping Co. Ltd [1979] ICR 713 153

Stone v. Charrington & Co. Ltd [1977] ICR 248, [1977] ITR 255 67

Stratford & Son Ltd v. Lindley and another [1965] AC 307, [1964] 3 AllER 102, [1964] 3 WLR 541 194, 197, 199,

Sulemany v. Habib Bank Ltd [1983] ICR 60

System Floors (UK) Ltd v. Daniel [1982] ICR 54

Tadd v. Eastwood and another

221

66

7

[1983] IRLR 320 151 Taff Vale Railway Co. v. Amalgamated Society of Railway Servants

[1901] AC 434 214 Talke Fashions Ltd v. Amalgamated Society of Textile Workers

[1978] 2 AllER 649, [1977] ICR 833, [1977] IRLR 309 137 Tanner v. Kean Ltd

[1978] IRLR 110 14 Taplin v. Shippam Ltd

[1978] ICR 1068, [1978] IRLR 450 67 Tarmac Roadstone Holdings Ltd v. Peacock

[1973] 2 AllER 485, [1973] ICR 273, [1973] IRLR 157 139 Taylor and another v. NUM (Derbyshire Area)

unreported, 14.12.84 Ch D 206 Taylor and another v. NUM (Yorkshire Area)

unreported, 28.9.84 Ch D 206 Taylor and others v. NUM (Derbyshire Area)

[1984] IRLR 440 205, 207 Therm-A-Stor Ltd v. Atkins and others

[1983] ICR 208, [1983] IRLR 78 62 Thomas and others v. NUM (South Wales Area)

[1985] IRLR 136 199,206,208,210,211,237,239,246,252 Thomas Scott & Sons (Bakers) Ltd v. Allen

[1983] IRLR 329 51, 53

xxn Table of Cases

Thompson and others v. Eaton Ltd [1976] ICR 336 173

Thomson (D.C.) & Co. Ltd v. Deakin [1952] 2 AllER 361, [1952] Ch 646 193, 195, 196

Tomczynski v. Millar (J.F.) Ltd [1976] ITR 127 185

Torquay Hotel Co. Ltd v. Cousins [1969] 1 AllER 522, [1969] 2 WLR 289, [1969] 2 Ch 106 193, 196, 198,

208 Tramp Shipping Corporation v. Greenwich Marine Incorporated

[1975] 2 AllER 989, [1975] 1 WLR 1042, [1975] ICR 261 178 Transport & General Workers' Union v. Courtenham Products Ltd

[1977] IRLR 8 46 Transport & General Workers' Union v. Gainsborough Distributors

(UK) Ltd [1978] IRLR 460 138

Transport & General Workers' Union v. Ledbury Preserves (1928) Ltd

[1985] IRLR 412 131 Transport & General Workers' Union v. Nationwide Haulage Ltd

[1978] IRLR 143 128, 129, 133, 137 Trend v. Chiltern Hunt Ltd

[1977] ICR 612, [1977] ITR 180, [1977] IRLR 66 19 Tynan v. Balmer

[1966] 2 WLR 1181 209, 264

Union of Construction, Allied Trades & Technicians v. Rooke (H) & Son Ltd

[1978] ICR 818, [1978] ITR 310, [1978] IRLR 204 133 Universe Tankships Inc. of Monrovia v. International Transport

Workers' Federation [1982] 2 AllER 67, [1982] ICR 262 148, 219

USDA W v. Leancut Bacon Ltd [1981] IRLR 295 134, 135

USDA W v. Sketchley Ltd f1981] ICR 644, [1981] IRLR 291 45,46

Vine v. DRG (UK) Ltd [1978] IRLR 475

Vokes Ltd v. Bear [1974] ICR 1, [1974] ITR 85, [1973] IRLR 363

Ward Lock & Co. Ltd v. Operative Printers' Assistants' Society and another

52

16

(1906) 22 TLR 327 211, 212, 261 Wass (W. & J.) Ltd v. Binns

[1982] IRLR 283 17 Weddel & Co. Ltd v. Tepper

[1980] ICR 286, [1980] IRLR 96 17

Table of Cases

Western Excavating (ECC) Ltd v. Sharp [1978] 2 WLR 344, [1978] ITR 221, [1978] IRLR 27

White v. Riley [1921] 1 Ch 1

White and others v. Kuzych [1951] AC 585, [1951] 2 AllER 435

Wignall v. British Gas Corporation [1984] ICR 716, [1984] IRLR 493

Williams v. Western Mail & Echo Ltd [1980] ICR 366, [1980] IRLR 222

Williams and others v. Compair Maxam Ltd [1982] ICR 156, [1982] IRLR 83

Williams and others v. National Theatre Board [1982] ICR 715, [1982] IRLR 377

Winnett v. Seamarks Brothers Ltd [1978] ICR 1240, (1978] IRLR 387

Woodroffe v. British Gas Corporation unreported, 2 December 1985, Court of Appeal

Woods v. WM Car Services (Peterborough) Ltd [1982] ICR 693, (1982] IRLR 413

Young v. Canadian Northern Railway Company [1931] AC 83

Young v. Carr Fasteners Ltd [1979] ICR 884, [1979] IRLR 420

Zucker v. Astrid Jewels Ltd [1978] ICR 1088, [1978] ITR 568, [1978] IRLR 385

xxiii

7,14

194,220

77

53,59

179, 181

16

185

178, 180

17

14

150

51

65

Table of Statutes

Companies Act 1967 s.16 31

Conspiracy and Protection of Property Act 1875

s.7 261, 262 Criminal Law Act 1977

s.1 263

Employment Act 1980 s.1 235 s.2 236 s.3 37, 38, 87, 211 s.4 77, 8~. 89,90 s.5 84, 90, 91 s.17 191, 223-7, 240, 241

Employment Act 1982 s.1 31, 32 s.12 108, 109, 229 s.13 109, 110, 229 s.14 110, 228, 229, 230 s.15 231, 242-5 s.16 239, 257 s.17 258

Employment Protection Act 1975 s.1 35 s.2 169 s.3 171 s.4 36, 37 s.6 15, 37,38 s.8 43 s.17 111, 112, 115-17 s.18 117-21 s.19 119, 122, 123 s.20 124 s.21 124, 125 s.99 127-30, 132-6 s.101 132, 133, 136, 139, 140 s.102 140 s.103 140 s.119 127 s.121 124, 127 s.122 127

s.126 s.126A Schedule 17 para. 4

44 168, 169, 171

38 Employment Protection

(Consolidation) Act 1978 s.1 5, 144 s.2 5 s.4 6 s.5 6 s.11 7 s.12 148, 187 s.18 148 s.23 61, 71-4, 93, 107 s.24 107 s.25 75 s.26 75 s.26A 75, 108 s.27 48, 49, 52-6 s.28 57, 59 s.30 56,60 s.32 49, 55 s.49 8, 203 s.~ U s.55 13, 14 s.57 14, 15, 19 s.58 20, 61-5, 93, 94, 96-103 s.58A 99, 100 s.59 16, 70, 71, 106, 148 s.62 13, 175-8, 184, 186, 187 s.63 18, 19, 20 s.64 12, 62, 173 s.65 148 s.67 187 s.71 70 s.72A 69 s.73 21, 68 s.74 21 s.75A 70 s.76A 21, 105, 106 s.77 65-7 s~8 ~ s.79 68

xxiv

Table of Statutes XXV

Employment Protection (Consoli-dation) Act 1978- continued

s.81 21, 173 s.82 188, 189 s.87 22 s.88 22, 188 s.89 22 s.90 22 s.92 188 s.96 148 s.99 22 s.107 148 s.110 189, 190 s.134 13 s.140 12, 148 s.141 12, 22, 48, 61 s.144 13, 22, 48, 61 s.145 13, 22, 62 s.146 48, 62 s.151 174, 175 s.153 72, 185 Schedule 13 para. 3 173 Schedule 13 para. 4 173 Schedule 13 para. 6 173 Schedule 13 para. 15 174 Schedule 13 para. 24 174, 176,

Equal Pay Act 1970 s.l s.2A s.3

177

23-6 24,25

159

Health and Safety at Work Act 1974 s.2 56 s.16 38

Highways Act 1980 s.137 260

Race Relations Act 1946 s.47 38

Sex Discrimination Act 1975 s.56A 38 s.64 24

Social Security Act 1975 s.19 176

Trade Union Act 1984 s.lO 230-2 s.11 232-5

Trade Union and Labour Relations Act 1974

s.2 80, 242 s.7 96 s.13 199, 214-16 s.14 192, 203, 214, 242, 247 s.15 214, 236-40, 260, 261, 264 s.16 192, 242, 247 s.17 248, 252 s.18 147, 157, 158,208 s.28 42 s.29 44, 112, 114, 216--22 s.30 42, 43, 48, 86, 94, 114, 143,

184, 238 Transfer of Undertakings

(Protection of Employment) Regulations 1981

Regulation 2 Regulation 5 Regulation 6 Regulation 9 Regulation 10 Regulation 11

140 161 161 162

140-2 140-2

Police Act 1964 s.51

Wages Act 1986 264,265 Wages Council Act 1979

27,28 27

Acknowledgements

I should like to thank my employers, Industrial Relations Services, for allowing me to make use of their extensive range of source materials and for all the encouragement and assistance they have given me in the preparation of this book. I should also like to thank Nigel Moore of Simmons & Simmons (Solicitors) for the time he spent discussing the manuscript with me and for his invaluable comments.

EDWARD BENSON

xxvi

Abbreviations

ORGANISATIONS

ACAS CAC CBI CIR CRE EOC IRC ITF TUC

Advisory, Conciliation and Arbitration Service Central Arbitration Committee Confederation of British Industry Commission on Industrial Relations Commission for Racial Equality Equal Opportunities Commission Independent Review Committee International Transport Workers' Federation Trades Union Congress

COURTS AND TRIBUNALS

EAT NIRC

Employment Appeal Tribunal National Industrial Relations Court

STATUTES

EPA EP(C)A TUA TULRA

Employment Protection Act 1975 Employment Protection (Consolidation) Act 1978 Trade Union Act 1984 Trade Union and Labour Relations Act 1974

The text explains the law as it stood at 1st October 1986.

xxvii

Introduction

Most workers are motivated more by financial necessity than by industrial enthusiasm. Work, almost by definition, is something people would prefer not to have to do. But this fact alone could hardly explain the often violent tensions that industrial relations can engender, though it obviously does not improve matters. Traditionally, these tensions have been explained by the fundamental conflicts of interest between workers and their employer.

The most frequent source of conflict is the regulation of wages. The owners' judgment of what the business can afford is likely to be influenced by their desire to maximise profits, while the judgment of the workforce is likely to be influenced by their desire to maximise wages.

Most of the working population is employed not by a person but by some form of institution. Anyone involved in the management of that institution is likely to be employed in the sense that they too work for it; but with greater seniority there comes a greater association with the interests of the 'employer', at least in the eyes of those lower in the hierarchy. To any one worker, 'the employer' is represented by the immediate boss. Thus the term 'industrial relations', though sometimes described as the relationship between employer and employee, is perhaps more accurately described as the relationship between employees and those people the employees regard as representing the interests of the employer.

In the private sector, most employing institutions are limited companies. Such companies are run by the 'management', which is responsible to the board of directors. The board looks after general policy but is primarily there to protect the interests of the shareholders. The workforce therefore has only an indirect say in the running of the business. Admittedly, directors now have a statutory duty to take into account the interests of employees (s.46 Companies Act 1980), but this duty is owed to the company and can thus only be enforced by shareholders. Where shareholders' interests conflict with those of employees, the shareholders' enthusiasm to see that s.46 is observed may not be very forceful.

The same is broadly true in the public sector. Statutory bodies are set up and charged with the duty of providing goods or services to the

XXIX

XXX Introduction

public in a reasonably efficient way, though government subsidy may remove the most pressing reason for efficiency: the threat of extinction if financial losses get out of hand. Where the interests of the workforce are inconsistent with this duty, conflict may arise in the same way as in the private sector, though there may be less commercial pressure on management to override the wishes of the workforce and workers may feel less inhibited in the demands they make. The same industrial relations problems, perhaps to different degrees, therefore occur in both the public and the private sectors.

In a competitive world, the management's prime concern must be the interests of the business. A business structured in such a way that workers have too great a say may not survive: hence the bureaucratic structure of most large enterprises which concentrates power and authority in those most closely concerned with the interests of the employer.

As against an individual employee, the management is normally in a position to dictate both terms of employment and the way in which duties are to be performed. The employer (as represented by management) has little to lose if an employee, objecting to such terms, etc., decides to leave; while the employee, particularly in times of high unemployment, has a great deal to lose. In this sense it is sometimes said that the bargaining power of the employee is less than that of the employer. Since at common law the rights of workers stem from their contracts with their employers, this inequality of bargaining power may lead workers to enter agreements which are very far from what they would have liked. The law has long upheld a person's 'freedom' to enter into an agreement which will lead them to disaster (the hallowed principle of 'freedom of contract') and, except in extreme circumstances where 'undue influence' has been exerted, will not rescue a person from a contract merely because it is not particularly advantageous for them. So the rights conferred on employees by the common law are extremely limited.

Since the law could not protect employees from low wages, arbitrary dismissal, etc., workers had to find other ways to improve their bargaining power so as to equate, or more nearly equate, with that of the employer. This has traditionally been achieved by combining together. Nowadays, bargaining in combination with others - or 'collective bargaining'- is accepted as the norm, though it took many years and a number of Acts of Parliament before the courts could overcome their distaste for anything that smacked of conspiracy.

Collective bargaining, then, is bargaining which takes place between

Introduction xxxi

the employer, or someone representing the employer, and the workforce or a particular work group as a whole, via a representative. One danger with collective bargaining is that the representatives actually involved in negotiation may have very little to do with those who will be affected by the outcome. Obviously this danger is greater where the negotiators represent a large number of workers or an area of an organisation or industry; deals reached may not necessarily reflect the views of all those affected and may be wholly inappropriate for some work groups. In such circumstances, managers may be tempted to come to informal deals with particular work groups, via shop stewards, over and above those reached through the formal collective bargaining channels.

This can lead to anomalies in pay structures and in terms and conditions of employment generally. It may also encourage a wide variety of 'restrictive practices' -that is, practices which protect those in particular jobs from competition, but which restrict the efficiency of the enterprise- often, it seems, without the knowledge of the union or higher management.

Similar difficulties can arise in relation to procedural agreements. Grievance procedures laid down in industry-wide agreements may be by-passed. Where formal arrangements exist, workers with an interest in the outcome of a dispute may not be content to wait until the formal procedures have been exhausted. Moreover, such formalisation takes the resolution of the dispute out of the hands of those immediately involved, fuelling further frustration. This may be particularly so in the case of work groups with considerable industrial power, who see no need to use formal grievance procedures if the matter can be dealt with more quickly and effectively by unofficial industrial action.

'Centralised' bargaining, that is bargaining at industry-wide level or some other level higher than the workplace, may have its attractions in terms of efficiency, but it has proved, in many cases, to be too unwieldy to be a satisfactory way of conducting industrial relations. Centralised bargaining was blamed by the Royal Commission on Trade Unions and Employers' Associations (Cmnd 3623) for many of the problems that industry faced in the 1960s.

The reason for the appointment of the Royal Commission in 1965 was an economic one: namely the steady decline in the competitiveness of British industry. It was believed that this was attributable, at least in part, to the pattern of industrial relations in this country. The Commission was set up in 1965, under the chairmanship of Lord Donovan, to consider what, if anything, needed to be done to

xxxii Introduction

reform industrial relations. They published their report in 1968. Broadly the Commission accepted collective bargaining as the

correct way of conducting industrial relations, but sought to overcome the problems they found by encouraging greater formalisation of bargaining procedures at factory or company level rather than at national or industry level.

The problem was that the informal system which had developed alongside the formal system was so firmly engrained that there seemed to be no way of forcing change without major disruption. In any case, these haphazard arrangements often suited managers and shop stewards. They were flexible and not subject to interference by outside bodies which had no knowledge of the particular circumstances and personalities involved. But the disadvantages outweighed these advantages. The informal arrangements were unfair, illogical and impossible to enforce, because so few people actually understood or even knew about them. They were unwritten and unstable, and largely based on 'custom and practice'.

Reform could only be achieved, the Commission thought, by voluntary means rather than by legal enforcement. The role of the law, they considered, should be strictly limited to assist in the smooth running of collective bargaining. Thus formal recognition by employers of unions and their shop stewards should be encouraged but not made obligatory and collective bargaining should be supported by, for example, outlawing any form of victimisation of union members. Legally enforceable rights for workers should only be granted where collective bargaining alone could not provide them.

This, they hoped, would lead to a more uniform approach which would iron out the anomalies that often gave rise to unofficial action. At the same time, it would facilitate the implementation of government incomes policy, which, it was thought, had failed in the past because of the impossibility of keeping the unstructured wage­negotiating machinery under control. It would also mean that restrictive practices would be brought out into the open and eliminated by negotiation under the improved bargaining arrangements that the Commission hoped would follow. Unions and employers' associations should no longer take part in the pretence that their negotiations had any significant impact on what went on in practice, but would take on a more advisory and supportive role.

Though not all of the Commission's proposals for legislative reform were put into effect, the general recommendations concerning the promotion of collective bargaining at the workplace strongly

Introduction xxxiii

influenced events in the 1970s. For example, ACAS was set up in 1975 to assist in improving industrial relations and promoting effective collective bargaining. Individual employees were given a right 'not to be unfairly dismissed' (originally under the Industrial Relations Act I971) and a variety of other 'employment protection rights' for which, it was considered, employees should not be required to bargain.

The Commission's recommendation to introduce these employment protection rights perhaps indicates a weakness in the Donovan thesis. If collective bargaining was unable to protect employees from unfair dismissal, why was it regarded as effective in other areas? Another possible mistake was to assume that formalising procedures would have any economic impact. Ultimately, the determining factor in any negotiation is the relative bargaining strengths of the parties: something the Donovan reforms would be unable to influence. Tinkering with the means by which negotiations take place could only have minimal effect. It remains as true today as it was before the Donovan reforms that a work group with a lot of power may exercise it in its own favour, while management may still exploit work groups with little power.

The result of the reforms was certainly an improvement in terms of formalising procedures. A survey carried out by the Department of Employment, the Policy Studies Institute and the Social Science Research Council1 found a considerable increase in the late 1970s in the extent to which trade unions were recognised and to which formal workplace procedures had been introduced. But they found that this had had little impact on industrial action. If anything, trade union recognition and high levels of membership appeared to increase the chances of industrial action.

So far as pay levels were concerned, they found a clear link between higher levels of pay and high membership or recognition of trade unions for manual workers; though for non-manual workers, trade union membership and recognition appeared to make little difference. This was during a period of supposed wage restraint. So much for the Donovan assumption that improved procedures would enable incomes policies to be imposed more effectively!

Formalisation of factory or company agreements did not appear to have had the beneficial economic effects that the Donovan Commission had predicted. No inroads were made on restrictive

1. W. Daniel and N. Millward, Workplace Industrial Relations in Britain (London: Heinemann, 1983).

xxxiv Introduction

practices and an effective incomes policy proved as elusive as ever. But this may simply indicate that too much was expected of the reforms. What they did achieve was an improvement in the process of collective bargaining: a result valuable in itself. Furthermore, the clearing of the obscurity that had surrounded collective bargaining in the past revealed some of the underlying conflict between management and workers, which is perhaps better expressed than repressed.

However, the economic problems remained unsolved. The Conservative Government elected in 1979 tried an entirely different approach. The solution, the government thought, was to reduce the effectiveness of trade unions and thereby interfere with the balance in collective bargaining in favour of management. The first assumption was that the management is in the best position to know what is good for the business - and hence, it is argued, the workforce - so that management alone should take decisions about running the business; and second, that the majority of union members realise this and would, but for a vociferous and politically motivated minority, never wish to resort to industrial action to interfere with managerial decisions. Two methods to achieve this reduction in union power were used. First, the types of industrial action that the law would allow were severely restricted. Second, the closed shop was made considerably more difficult to enforce.

The important point about recent reforms is the 'step by step' approach. Even now, much of the legislation brought in by the Labour Government in the 1970s, which was strongly influenced by Donovan, remains on the statute-book. Thus the legislation (or some of it) still encourages collective bargaining and the use of formal workplace procedures (the remains of Donovan) but the bargaining power of the unions and the ability of work groups to obstruct management initiatives have been reduced (the recent amendments).

So there are now three ways in which the law intervenes in the practice of industrial relations:

- providing, in certain circumstances, a minimum floor of workers' rights which collective bargaining alone cannot provide;

- establishing machinery to assist in the smooth running of collective bargaining;

- limiting the combined power of a workforce by restricting the closed shop and by outlawing certain forms of industrial action.