Droit du travail britannique : évolutions récentes (1)

Alan C. Neal, professeur à l’Université de Warwick, est un spécialiste anglais du droit comparé européen. Il a une grande expérience acquise dans de nombreux Comités auprès de la Commission européenne, dans des interventions d’expert indépendant auprès du Bureau International du Travail. Il a également au début des années 2000 travaillé à la création du droit du travail chinois dans le cadre de missions auprès du ministère du travail à Pékin. Entretien réalisé en novembre dernier, portant sur les évolutions du droit du travail britannique, en lui-même et dans ses relations avec les directives européennes et les normes internationales.

What are the debates tending to the labor law developments in the United Kingdom (UK)? How do you see mid-term and long term trends about labor law in the UK?

The context needs to be described first. We’re at the beginning of a new parliament, with five years of power for a conservative government, which has a working majority. We’ve just finished a period of joint liberal-democrat government, which has already shown a particular direction for labor law. And that direction will continue and become more intensive. There are three areas which are indicative of travel. First, the scope of individual labor law protection, which most commentators would say has been narrowed in the last five years and there are suggestions it could be further narrowed. The scope of coverage to workers and employees, which are the two expressions we use, is limited for example in relation to protection against dismissal. We have a notion of ‘unfair dismissal’, which translates vaguely by « licenciement justifié », where in order to be protected, it’s necessary to work for a qualifying period of time. Until three years ago, that was one year. The last government increased it to two years, immediately excluding a large number of workers from the coverage of the protection, because we have quite a large percentage of frictional job change. So that people coming into jobs tend to be in the early months of that, and they move fairly fast. That’s clearly a lessening of protection. Whether it’s a threat to individual workers in an era where job change and job location and mobility are much more significant than they were, for example, twenty years ago, must be a question for debate. It’s flexibility, but at the expense of the established workers in a particular job.

Other examples of individual rights which have been affected recently would include quite an interesting example designed to protect whistleblowers, so the publication of information or the declaration, publically, of information concerning the employer or the enterprise, without permission from the latter, is protected where it’s done in the public interest. We have a notion of public interest which is similar to the notion of « ordre public », but is less technically defined: it’s a common law doctrine, so it’s slightly problematic. This is an area where we have to think also about protections against bullying in English law. Because we have no notion of mobbing, or these sorts of developments that have become quite common in the debate in continental European system. There is no remedy under the common law for a worker who is bullied by his or her employer, unless the bullying amounts to harassment by reference to one of the protected characteristics in the framework directives on discrimination. So there is a remedy for being bullied because of your sex or race, but being bullied because the employer wishes to make life difficult or unpleasant is not covered. This area of whistleblowing, developed by way of court decisions, so the judges made rules which extended the protection to people who complained about the treatment of the employer, on the ground that this was a breach of their contract. It was interpreted by the judges as being an allegation of unlawful action by the employer, which was protected by the whistleblowing provisions. That came quite spontaneously from judicial decisions, and developed over three or four years as quite an effective remedy for bullying, effectively, where there was not a protective characteristic associated with the bullying.

What about the government ?

The government passed a law last year to amend the whistleblowing provisions, so that in order to be protected, the worker has to show that the disclosure was made in the public interest. That clearly limited the scope of protection. Although, if you wanted to be technical about it, you could say, really, that returned the judge-made law to the position it was intended with the original legislation. So, it’s an open question as to whether it’s an attack on employment rights. But what’s very interesting is that in the last two or three months there’s been a decision by the first level of appeal, the employment appeal tribunal, saying if a collective interest is the subject of the disclosure, so than more than one of public employees is involved with this, it can amount to an allegation made in the public interest. So, ‘public’ has been widely interpreted, and the interest of the public, under that wide interpretation could possibly keep the protection which had been developed earlier. It’s bound to be appealed, so I don’t know how it will end up. But it’s an interesting example of how the English law comes backwards and forwards, and it’s not really possible to say, as a matter of doctrine, where it’s going. These are two examples, in relation to individual rights.

In terms of the enforcement of individual rights, there’s been a very strong attack, which has been related to access to justice, and how easy it is, or not, for a worker to go to the equivalent of a labor court. So we have four levels for labor cases. The first level is the employment tribunal – it’s not really the same as the « prudhommes », because it’s more professional in the sense of being professional judge-led, it has lay participation, but increasingly, individual rights are dealt by a single judge sitting alone, so it’s not really an equivalent of the « prudhommes » model, although many people translate it as an equivalent of the « prudhommes », it’s not. You can appeal against a decision at that level if there is an error of law, but only if there’s an incorrect legal approach. So the fact-finding is limited to the first level. You can appeal to the employment appeal tribunal, then to the normal civil court of appeal, and then finally to the Supreme court. All four levels can make a reference to the Luxemburg court, under article 2-67 of the treaty. So it’s possible for me, at a first level judge, to make a reference to Luxemburg if a matter of European law is engaged and I consider that in, my discretion, it’s useful to do that.

Could you give more details about the articles of the treaty?

Article 2-67 gives power to the judge to make a preliminary ruling reference to the Luxemburg court of justice of the European Union (EU). At levels which are not the final level of appeal, in our case the first three levels, the matter is one of discretion: the court does not have to make a reference. When an issue reaches the last instance and there is no further domestic appeal, so that would be our Supreme court, if there is a question of European law engaged which requires clarification, then the Supreme court is obliged to make a reference. The article 2-67 is in two parts: a mandatory part, which applies to the Supreme Court, and a discretionary part, which applies to the other levels of courts. The exception would be where the Supreme Court takes the view that the matter is clearly decided, and there is no need for an appeal, and that the law is clear. So they use the doctrine of « acte clair », and they take the French administrative approach to what that means, although it’s very rare. The court of Justice has defined when you can use that, and it shouldn’t really be used in this situation.

It’s very hard to see possibility to challenge what has happened procedurally under European law, which tends not to touch the procedures unless they reach a situation where there is no ability, effectively, to enforce a community right. There’s therefore an argument that if there is a problem of access to justice in relation to a community right. For example, under the working time directive from 1998 – which applies to holiday pay and time off from work – that could be a context in which you could challenge what’s happened. What has happened is the government has introduced a regime where to go to the employment tribunal you have to pay a fee. Until 2013 it was free, and there was requirement for either a fee or for costs to be payable, unless there had been behavior which was effectively bad behavior before the court: frivolous, vexatious, or otherwise unreasonable.

Since 2013, a fee is payable, first of all, when a party starts an action, and second, an additional payment if it comes to the trial. So, just to get on the paper costs money, and to bring it to court costs further money. There are two levels of fee, ‘A’and ‘B’. ‘A’ covers very small claims, for example non-payment of wages or holiday pay or notice money. These tend to be very small amounts of money: 150 pounds – 250 euros, that sort of bracket. We had a lot of cases of that kind, and they’re fast cases, quite effective, very useful especially to migrant workers. We have a lot of EU 10 and EU 12 migrants in recent years, and you find a lot of actions from Lithuanians, Czechs, Estonians… Now, to bring a category ‘A’claim, – the small claims, the total you haveto pay comes to 390 pounds, so about 450 euros. It’s a lot of money for somebody who has no job, and hasn’t been paid their wages and wants to complain about it. A classic case would be…a Spanish waiter gets a job in a London restaurant, isn’t paid at the end of the first week. OK, says the employer, the money will be there next week. Second week, he still doesn’t get paid. Third week, neither, so he leaves and gets a new job. In the past, they would come to the tribunal, wouldn’t have had to pay anything, and a very quick system would recover their wages. The enforcement mechanisms were not good, but they would at least get the law done. Now, they have to pay 390 pounds to get the case to a trial in order to get that award. In category ‘B’ cases, which are unfair dismissal and discrimination, the figure 950 pounds (1200 euros), a hell of a lot of money. What happened is that the volume of cases has dropped dramatically. In the first year, the drop was 81%. So we’re now receiving 19% of the original figures; we had about 220 000 cases before.

We’ve had a drop of forfeits over a period of eighteen months. The drop is slightly lower now because historically it’s coming from a lower base. What’s interesting is that the government will say that proves that these measures, these fees – and there’s also a system of what’s called ‘compulsory pre-trial conciliations’, with the ACAS (Advisory, Conciliation and Arbitration Service) have succeeded in removing the large numbers of unjustified cases, weak cases, troublemaker cases… The problem is when you look at the statistics: the percentage of works who win their cases in the remaining 20% that we’re now hearing is exactly the same as it was for the original 100%: Which doesn’t suggest that that argument is valid; it doesn’t disprove it, but it doesn’t suggest it is. You can’t brood inference on that. It’s quite problematic. There was a challenge to that fee regime, brought on by of the big trade unions unite. They’ve been twice to the court, asking for judicial reviews, our equivalent of an administrative review under French administrative law, but we don’t have the same system. And they failed on both occasions, and most recently in the summer, they failed in the court of appeal. Whether they will get permission to go to the Supreme Court or not… probably not. The argument is « does the fee regime make it impossible for workers to make their claim? » The argument used by the court of appeal is ‘the fee regime doesn’t make it impossible: it means the worker has a choice to spend the money on the court fee or to pay for food and lodging for their family’. It’s a very, very narrow, technical interpretation. And what’s very interesting is that the judge who made that decision, earlier, has been the president of the employment appeal tribunal, and was, before that, an academic. You would’ve expected a more sympathetic line…

The International Labor Organization (ILO), in the last report on the application of conventions and recommendations, has asked for information from the British government about the impact of these fees on various aspects of rights under ILO conventions. But again it’s very difficult to find a good example where you could say that that’s been restricted. Because this doesn’t apply, for example, to collective labor law trade union disputes. Those belong in the high court, the normal civil procedure arrangements. And they’ve always had fees, so, if it wasn’t bad last year, it’s not going to be bad this year. There’s a problem there.
That’s the second dimension, the procedural dimension. We’ve looked at individual rights, the access to justice. The third is collective labor law. The level of trade union membership in the UK has dropped by about 50% between 1979 and now. 1979 was a sort of high point. About two thirds of the active labor market belong to trade unions, about 13 million out of a total active were labor market of about 20 million. Now, we have an active labor market of 31 million, in the last figures, so that’s increased by 50%, and we have 7 million trade union members, so that’s halved. In France, you have different phenomena, the ability to mobilize social action is very effective, so nobody would suggest that the French trade union were without power or influence or the ability to lean heavily on governments or employers. We don’t have anything equivalent in English social, political arrangements.

What sort of power do have trade unions ?

Our government has decided, notwithstanding that, the trade unions are still a real problem in a market economy, so we go back to Mrs. Thatcher, we go back to IEC (high-economy), to all those arguments… And one of the problems has been that the few unions which still have quite good strategic power tend to be in the public sector and tend to be close to essential services. So, for example, the underground union is very strong, as well as the Docklands Light Railway (DLR), parts of the national rail system, and groups like the firemen have taken a strike action in recent years. The government is not very keen on that. We have no real provisions which prohibit industrial action in essential services; we never had a particular regime like that, other than during the war, when we had a number of provisions, which actually weren’t very effective: they’ve always been regarded as a disaster. There are proposals, and there is a draft law, going through the parliament at the moment, designed first of all, to make strikes more difficult to organize, across the whole economy. At the moment, we have a situation where we have no constitutional rights to strike, or anything in the law which gives us a right to strike. So we’re not in the same situation, analytically, as for example the German, French context, or the Nordic countries. Our situation is that a strike by an individual remains a breach of my contract of employment, and that is a ground for terminating it. But the employer has to be a little bit careful, because we have some quite effective provisions, which protect the right of association.

Although they are a lot of things bad about trade union law in the UK, protection of the freedom of association is not one of them. It would be unfair to criticize any British government: they have strong pro-rate protections reflecting the ILO convention 87-98, and article 11 of the European social convention on human rights. What the government proposes is to increase the procedural steps before you can take legal action. At the moment, you have protection against being taken to court with a claim for damages for the loss suffered in a strike, as long as what you’re doing is in furtherance of a trade dispute. In other words, as long as you can show that the strike is organized for a trade reason, which means for example that the political strike is not lawful. But a trade-related issue protects you. So the employer can’t take you to court and sue you for damages in delict. Otherwise they would have an action either for breach of your contract or for delict. The contract position is unclear, the delict is protected. In order to have that protection, the trade union has to have a ballot of voting members who are going to take part in the strike action. And at the moment, they need around 40% of those who vote. There’s a lot of criticism, that they get very low numbers voting, and that strike action results after only 15 or 20% of the workers involved have voted yes. There’s been a lot of political debate about this.

What about strikes ?

There’s also a requirement for trade unions to notify the employer of the names of the individual workers who will take part in the strike. Interesting it’s on the edge of the freedom of association protection, but it’s been tested both before the European court of human rights in Strasbourg and a case in 2014 held that they were no infringements of article 11. So they lost on that one, although the ILO committee of experts has been very critical of this – the ILO having its own problems with the employer group as to whether conventions 87 and 98 include a right to strike. So there’s no way you’re going to get any action at that level. So it has no impact on the international level. It’s an entirely domestic problem. And the proposal in the new law is to require a majority: (50%) of the votes in favor of the strike out of all the workers who are eligible to vote. Not just those who vote. Which makes it significantly more difficult to get a vote in favor of the strike. We have a political shift where the Labor party has a new leader, has a new direction, probably has committed itself to opposition for at least the two next centuries…

But whatever is going to happen, they’re not really in a political position to support contrary argument during the parliamentary debates, but they are likely to support unlawful strike action, which makes a very interesting area for debate, which, if you take the sort of approach of British public opinion in recent years, would result in the conservative party having more support rather than less for this sort of action. In other words, the prospects of mobilizing public opinion or social unrest or any of that sort, are quite low. This measure may well go through, without much change, as well. The controversial question is whether there should be further limits to taking strike action in the essential services, and the government still hasn’t really made clear what they intend to do. They are provisions in draft form, but I think they realize that’s a very, very dangerous one for them to approach, because really, the remaining parts of unionized work force are in those essential services. If you look at the overall percentage, it’s just under 25% of the total work force. So, compared to 1979 -two thirds, that’s a quick drop. In the private sector, it’s under 15%, so it’s really the public sector which is keeping that figure up. And of course the public sector, as with everywhere else, is under threat from the austerity measures. So the popularity of taking action is really not that strong. So it’s not a direct attack on individual workers’ rights, there are one or two examples, the unfair dismissal, increasing of the qualifying period is one clear one, but it’s quite difficult to argue that there’s a whole range of these: they’re little things, and when you put them together, there’s a direction which is in favor of less protection for more workers.

Access to justice was restricted

There’s a very, very clear direction of restricting access to justice, and that’s the dangerous one. You need to look behind the normative provisions, and ask questions about how enforceable, how effective they are. Can they be enjoyed? Whether before a court or in some other way? That’s the big problem, because we’ve been badly let down by the academic debate: the academics do no look at this, they look at the normative or the theoretical approach, and ask questions about the doctrinal direction. In fact, if you look at the very practical, very pragmatic day-to-day activities, you find this is what’s completely undermining the system of individual employment rights. And then when you move to collective labor law, there’s already probably one of the most restrictive regimes for taking lawful legal strike action, which is going to be even more narrowed. And if you look at the indicators as to how restrictive it is, they all suggest that the UK’s at one end of the spectrum, and it will go further down that line with these new provisions. There’s no doubt about that. But there doesn’t seem to be any opposition which would effectively be mobilized, because, although there may be political opposition, there may be rhetoric.

The ability of the labor party as an opposition is severely undermined: one, by its change of direction, and two, by the split of opposition with the Scottish National Party (SNP) which doesn’t see the same interest at heart. And the SNP will be in trouble after last week, because they had a vote along with the Scottish Labor Party (SLP) not to renew the British nuclear deterrent. That will result in a very large numbers of job losses. The English government is very keen to have a nuclear deterrent, but it locates it in Scotland, so the bases for the nuclear submarines are in Faslane, in Scotland. And the SNP has a policy against nuclear weapons in Scotland. The SLP has just voted against nuclear weapons in Scotland. There will be enormous job losses if they do remove or end nuclear weapons in Scotland, because the British government is not going to say no to that. They’re dying to do other things in other parts of the world. The question of job losses, and majorly the labor market implications is quite significant, and neither of those parties has had any answers to what they’re going to do about that. And of course Scotland is not economically strong enough at the moment, because of the price of oil, so it’s a bad situation. The opposition in parliament is very weak on these sorts of issues. Both of these opposition parties will be in trouble with their own electorates over these sorts of decisions, so they’re not going to be able to argue at an integrate national level. So these measures will become law, and we’ll see a continuation of that.