10.6092/issn.1561-8048/11960
Freedom and dignity, two key aims of the Italian Workers’ Statute of 1970, stand out as two concepts of debate in the UK workplace. Dignity has not been a frequently used term in UK employment law. Freedom has been a challenging concept in this jurisdiction. Freedom of association has been notably curbed in the UK since the 1980s. Even in the 21st century, the means through which trade unions can execute their representative functions have been limited by legislation. Freedom of expression has also been restricted, particularly through the remarkable force of contract clauses and policies that grant employers power to assess the online remarks of their workers. This situation has been lightly treated to date. Finally, there seem to be looming issues of access to justice for workers when one considers government attempts to (arguably) disincentivise recourse to employment tribunals.
application/pdf
1561-8048
11960
2
en
David Mangan
https://creativecommons.org/licenses/by/4.0
Italian Labour Law e-Journal
Access to justice
Freedom and Dignity in the UK workplace
Text.Serial.Journal
https://illej.unibo.it/
13
Theme
2020-12-21
2020-12-14
2020-12-21
2020-12-21
35-49
ILLeJ
David Mangan
2020/12/21
10.6092/issn.1561-8048/11960
35
Maynooth University
1561-8048
2
Access to justice
en
49
Freedom and Dignity in the UK workplace
https://illej.unibo.it/article/download/11960/11864
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Freedom and Dignity in the UK Workplace                                             Italian Labour Law e-Journal
David Mangan                                                                               Issue 2, Vol. 13 (2020)
david.mangan@mu.ie                                                                               ISSN 1561-8048
                                                                  https://doi.org/10.6092/issn.1561-8048/11960




             Freedom and Dignity in the UK workplace
                                           David Mangan



 1. Introduction. 2. The decline in the freedom of association and the work of trade unions.
 2.1. The 1980s: a meticulous undercutting of the freedom of association. 2.2. A new Labour
 Government, but not a return to the 1970s. 2.3. Coda: a return to the 1980s. 3. Tweeting to
 unemployment. 4. Procedural Challenges. 4.1. Access to courts. 5. Conclusion.


                                                   Abstract

     Freedom and dignity, two key aims of the Italian Workers’ Statute of 1970, stand out as two
     concepts of debate in the UK workplace. Dignity has not been a frequently used term in UK
     employment law. Freedom has been a challenging concept in this jurisdiction. Freedom of
     association has been notably curbed in the UK since the 1980s. Even in the 21st century, the
     means through which trade unions can execute their representative functions have been limited
     by legislation. Freedom of expression has also been restricted, particularly through the
     remarkable force of contract clauses and policies that grant employers power to assess the online
     remarks of their workers. This situation has been lightly treated to date. Finally, there seem to
     be looming issues of access to justice for workers when one considers government attempts to
     (arguably) disincentivise recourse to employment tribunals.



     Keywords: Employment rights; United Kingdom; Freedom of association; Freedom of
     expression; Access to justice



 1. Introduction.

    This collection commemorates the 50th anniversary of the Italian Workers’ Statute which
 aimed to protect, among other points, workers' freedom and dignity. While the present
 contribution does not compare UK and Italian law, the prescience of the Statute’s drafters is
 notable when considering UK labour law in the 21st century.1 This report speaks to the areas
 commonly identified as distinctive of this piece of legislation: the legal protection of freedom
 and dignity of employees within the workplace, by limiting the employer’s powers (direction,
 supervision, discipline) and by granting freedom of association and freedom of trade union

 
   Lecturer in Labour Law, Maynooth University, Ireland. This article has been submitted to a double-blind peer
 review process.
 1 The present contribution does not consider developments in Italy after the passage of the Italian Workers’

 Statute.
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activity at the workplace. Instead of a comprehensive assessment, workers’ freedoms in the
areas of association and expression are used as illustrations.
    Balking at efforts to improve employment protections has been a consistent tactic dating
back to Prime Minister Margaret Thatcher (who was in office 1979 to 1990). The UK resisted
and eventually rejected ILO Convention 158 and Recommendation 166 (just cause
provisions regarding employer-initiated termination of employment). It also unsuccessfully
challenged the Working Time Directive.2 Since the 1980s, UK governments have largely
taken steps that remove limitations on employers’ abilities to manage their workplaces as
they see fit.
    With this in mind, dignity is not a frequently used term in UK employment law; though
it is mentioned in academic discourse. Cases centring on harassment or bullying in the
workplace have used the term dignity.3 Instead, the UK approach has been to legislate ‘a
floor of rights for someone who was perceived as essentially a subordinate’, omitting
engagement with the individual’s dignity because that was outside the legislature’s remit.4 The
Declaration of Philadelphia (1944), that labour is not a commodity5, intended to encapsulate
the dignity aspect of the people who perform work;6 ‘the objective of transaction in an
employment relationship is not a commodity but the human being as such’.7 The infrequent
discussion of dignity in work in the UK (as compared to Italy, for example) is instructive. In
the early 21st century, labour in the UK seems be viewed singularly as a commodity, compared
to its stated place8 in 1919 in Article 427 of the Treaty of Versailles when ‘labour should not
be regarded merely as a commodity or article of commerce’.
    The state of workplace freedoms such as association and expression have been weakened
in the decades leading up to the 21st century, showing no indication of reversal as we move
further into it. The 1980s legislative agenda effectively eroded the abilities of trade unions to
represent their members, thereby diminishing the force of any association rights. It is argued
here that the erosion of freedom of expression (using online platforms) has been an
underappreciated subject. Largely this area is driven by case law which interprets employment
contracts. While there has been no direct attempt to silence workers, there has certainly been
a chilling effect when one considers the powers granted to employers with regards to



2 Directive no. 2003/88/EC. See Court of Justice, C-84/94 UK v Council [1996] ECR I-5755 when the UK
initiated proceedings to have the Directive annulled, arguing that working time was not a health and safety
issue.
3 ‘the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have

been created’: Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 (EAT), [15].
4 Lord Wedderburn of Charlton, The Italian Workers’ Statute – Some British Reflections, in Industrial Law Journal, 19,

1990, 154, 158.
5 The Declaration of Philadelphia (1944) forms an annex to the International Labour Organization’s

Constitution.
6 Frank Hendrickx argued that labour is not merely a commodity (recognising elements of commodification as

well as preserving the dignity of the human who performs the work): Hendrickx F., Foundations and Functions of
Contemporary Labour Law, in European Labour Law Journal, 3, 2012, 108.
7 Weiss M., Re-inventing labour law?, in Davidov G., Langille B. (eds.), The Idea of Labour Law, Oxford: Oxford

University Press, Oxford, 2011, 44.
8 The British delegation was responsible for this nuance: Shotwell J. T. (ed.), The Origins of the International Labor

Organisation, Columbia University Press, New York, Vol. I., 1934, 78.

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employees’ online speech. Overall, it is contended that these two examples suggest a
deepening precarity9 for UK workers as these freedoms are presently in a weakened state.


2. The decline in the freedom of association and the work of trade unions.

    The exercise of reflecting upon the Italian Workers’ Statute 1970 from a British
perspective was undertaken by Lord Wedderburn in 1990,10 in celebration of the Statute’s
20th anniversary. At that time, he considered it ‘useful to cast an eye comparatively on the
Italian Statuto dei lavoratori …, first for the rich material it contains and, secondly, as a way
of reassessing British experience in the second half of the 1970s and, through that, prospects
for the 1990s’.11 Lord Wedderburn elaborated upon the decay in labour law through
successive pieces of legislation through the 1980s. His reflections from Great Britain remain
valuable because they reveal how matters have not improved since that time.
    In the UK, there has been a history of encumbrances to the work of trade unions, largely
around industrial action. The British system has long operated on the idea of ‘immunities’.
This means that Parliament grants, through legislation, protection for union activities which
avoid criminal and/or civil liability for such actions. With this formulation, Parliament
(particularly the governing party) carries much power with regards to how it can affect
industrial action. It can narrow the parameters for immunities so that certain preconditions
are met.12 These are not ‘rights’ in the sense that an Italian audience would be familiar.


2.1. The 1980s: a meticulous undercutting of the freedom of association.

   Upon Prime Minister Thatcher taking office, inflation and unemployment sat at high
levels (15% and 5.3% (for the period May to June 1979)13, respectively). Improving the
economy was the response. The method selected, monetarism, required abandoning
collective laissez-faire14 because it was viewed as a root cause of a deficient economy.15 Since


9 This  is an argument put forward in Mangan D., Deepening Precarity in the United Kingdom, in Kenner J., Florczak
I., Otto M. (eds), Precarious Work. The Challenge for Labour Law in Europe, Edward Elgar, Cheltenham, 2019.
10 See nt. (4), 154.
11 Ibid.
12 For a history of procedural reforms to industrial disputes, see Elgar J., Simpson B., The Impact of the Law on

Industrial Disputes Revisited, in Industrial Law Journal, 46, 2017, 6.
13 Office of National Statistics, Unemployment Rate (aged 16 and over, seasonally adjusted)

https://www.ons.gov.uk/employmentandlabourmarket/peoplenotinwork/unemployment/timeseries/mgsx/
lms. During her time in office, unemployment reached a high of 11.9% in 1984.
14 The model championed by Otto Kahn-Freund. See for example, Kahn-Freund O., Labour Law, in Ginsberg

M. (ed.), Law and Opinion in England in the 20th Century, Stevens, London, 1959, 224. This view has not escaped
challenge: Clegg H.A, Otto Kahn-Freund and British Industrial Relations, in Wedderburn K.W., Lewis R., Clark J.
(eds.), Labour Law and Industrial Relations: Building on Kahn-Freund, Clarendon Press, Oxford, 1983, 14-28.
15 See Hayek F.A., The Constitution of Liberty, University of Chicago Press Chicago, 2011, Chapter 18. Hayek was

a guiding voice for the Conservative Government of the 1980s. In addition to Hayek, see also Department of
Employment, Employment: The Challenge for the Nation, HMSO, London, 1985 which, among other points,

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then, regulation in labour law has focused on enabling commerce by minimising or removing
(perceived) restrictions on the competitiveness of businesses.16 Though arguably appropriate
to view them as anti-inflation strategies at that time,17 ‘the notion of a market economy as
the ideal for industrial society’18 pushed these changes to employment regulation beyond
anti-inflation measures. The UK legislative agenda from the 1980s illustrated not only a
notable shift away from collective labour law, but also the embedding of employment
regulation within macro-economic policies.
   Adopting a view of the coercive force of trade unions regarding their membership, the
Government passed the Employment Act of 1980 which withdrew protections for trade
union members participating in secondary picketing. The threshold for a vote in favour of
establishing new closed union shops was increased to 80% of those eligible to vote or 85%
of those voting. The definition of a trade dispute had been narrowed, thereby expanding the
exposure of strikers (for example) to legal sanctions and making strike action a more perilous
one for workers. The 1980 Act also withdrew (s.19) the recognition procedures for trade
unions which had been put in place by the Labour Government in the form of the
Employment Protection Act 197519. A trade union that had earned a high level of worker
support, but where the employer refused to recognise it, was left without legal remedies. The
Employment Act 198220 further weakened the immunities for trade unions regarding
industrial action and set no limit on damages against a union. This meant that employers
could sue trade unions for damages stemming from industrial action falling outside of
statutory immunity. In the Employment Act 1990 (s.6), the scope of application of damages
was widened. There were those who pressed for even more definitive changes such as the
removal of statutory immunities21 for trade union actions from tort liability.22 The push for
the latter outcome had been based upon the ‘simplistic’23 premise that trade unions had cost
one million jobs.24 As it now stands, trade union members have protection (immunity) from
tort action if they fit within a detailed set of parameters beginning with Trade Union and
Labour Relations (Consolidation) Act 1992 (TULRCA) s.219 and s.238A. This is only
determined upon compliance with a number of other provisions including: a proper voting

sought to instil ‘freedom’ ‘so that employers are not so burdened by regulation that they are reluctant to offer
more jobs’.
16 ‘Analyses that centred on market competitiveness and monetarist economics have put in issue not only such

institutions as employment protection legislation but, much more profoundly, the collective base of labour
relations’. Wedderburn K. W, The Worker and the Law, Penguin, Harmondsworth, 1965, 838.
17 As described in Collins H., The Productive Disintegration of Labour Law, in Industrial Law Journal, 26, 1997, 295,

303.
18 Davies P., Freedland M., Labour Legislation and Public Policy, Oxford University Press, Oxford, 1993, 526.
19 c.71, 1975.
20 c.46. See ss.15-16.
21 In the UK, the law does not provide a positive right to strike. Rather, ‘immunities’ are provided, insulating

those who undertake valid strike action from civil or criminal liability. Strike action can constitute (amongst
other things) an inducement to breach a contract creating a situation of civil liability in tort: Taff Vale Railway v
Amalgamated Society of Railway Servants [1901] AC 426 (HL). For further discussion see, Novitz T., Lorber P.,
Industrial Conflict in the UK, Ch. 5, Intersentia, Cambridge, 2012.
22 Identified in Ewing K.D., Economics and Labour Law in Britain: Thatcher’s Radical Experiment, in Alberta Law

Review, 28, 1990, 632, 637.
23 See nt. (16), 841.
24 Minford P., Trade Unions Destroy a Million Jobs, in Journal of the Institute of Economic Affairs, 2, 1982, 73.



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procedure (including ballots and timing of ballots sent to voters) is followed pursuant to ss.
226-230, 234; and that the results are properly provided to voters (s.231) and to the employer
(s.231A).25 If activity is undertaken that is itemised in ss.222-225 or ss.237, then it falls outside
of the protected area.
    While employment regulation had been reconfigured to support macro-economic aims, it
may be surprising that the legislative changes during the 1980s did not themselves precipitate
a marked increase, such as in production.26 This outcome has been familiar in labour law
where belief has often trumped evidence.27 Although the fervent belief that trade unions had
held the country back was challenged, the conviction remained.
    The influence of the reforms of the Margaret Thatcher government remains well into the
   st
21 century.


2.2. A new Labour Government, but not a return to the 1970s.

    ‘New’ Labour embodied a sentiment of hope when it was elected in 1997. And yet, the
first Labour Government since the 1970s has been critically characterised as predominantly
staying the course set by Margaret Thatcher.28This assessment remains sound.29 With regards
to trade unions in general, there was a different attitude which diverged from the Labour
Party of years past.30 Prime Minister Tony Blair’s Labour Government would engage in
dialogue with unions but he would direct the conversation. With respect to public sector
unions, Blair’s attitude appeared to be similar to that of Thatcher: ‘he believed [that they]
were stubbornly resisting his plans to privatise central and local government activities
because they wanted to defend public-sector inefficiencies and their restrictive labour




25 Seefor example, British Airways v Unite [2010] EWCA Civ 669
26 Seent. (22), 645-647.
27 For an elaboration of this critique, see Slinn S., The Limitations of Pieces of Paper: A Role for Social Science in Labour

Law, in Canadian Labour and Employment Law Journal, 12, 2006, 291.
28 One critic characterised ‘New’ Labour’s ‘Third Way’ as neoliberalism ‘by stealth’: Fredman S., The Ideology of

New Labour Law, in Barnard C., Deakin S., Morris G. S. (eds.),The Future of Labour Law: Liber Amoricum Bob
Hepple Q.C., Hart, Oxford, 2004, 9, 10. The period has also been called a ‘re-convergence of objectives’: Davies
P., Freedland M., Towards a Flexible Labour Market, Oxford University Press, Oxford, 2007, 42. The authors
(page 43) contend: ‘Our analysis will suggest that there was at least a partial sense in which a new way was
found, though perhaps more at the level of methodology than at the underlying objectives.’
29 Drawing from Collins H., Regulating the Employment Relation for Competitiveness, in Industrial Law Journal, 30, 2001,

17 in which he discusses ‘flexible employment’, Davies & Freedland argue that the over-arching aim of Labour
during this time had been establishing ‘managerial flexibility’: ‘the capacity of, and the propensity for, employing
enterprises to engage in job re-structuring and institutional re-structuring’: see nt. (28).
30 This Labour Government was significantly influenced by the ‘third way’ which had been set out by Giddens

A., The Third Way: The Renewal of Social Democracy, Polity Press, Cambridge, 1998. He later explained that ‘Third
Way politics – modernizing social democracy – can develop a political programme that is integrated and robust.
Far from displacing social justice and solidarity, third way politics, I shall argue, represents the only effective
means of pursuing these ideals today. Far from being unable to deal with questions of inequality and corporate
power, it is the only approach able to do so in the context of the contemporary world’: Giddens A., The Third
Way and its Critics, Polity Press, Cambridge, 2000, 29.

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practices.’31 The Prime Minister’s ‘Foreword’ in Fairness at Work32 outlined his view of
industrial relations:
    This White Paper is part of the Government’s programme to replace the notion of conflict
between employers and employees with the promotion of partnership.
    The White Paper steers a way between the absence of minimum standards of protection
at the workplace, and a return to the laws of the past. It is based on the rights of the
individual, whether exercised on their own or with others, as a matter of their choice. It
matches rights and responsibilities. It seeks to draw a line under the issue of industrial
relations law.
    Although workplace rights persist as an issue in labour market regulation, the Labour
Government of Tony Blair entrenched the Thatcher approach to employment laws.
Employment regulation remains adjunct to economic growth. With employment protections
being subject to the perception of their potential negative economic impact, the dominant
perspective seems to be that of transaction costs which are measured by their resulting
efficiencies. Described as ‘unashamedly managerialist’ as applied to the labour market,
transaction cost efficiency considers the ‘minimising [of] the real resource costs of writing,
monitoring and enforcing employment contracts.’33


2.3. Coda: a return to the 1980s.

    A significant achievement of the Labour Government at the turn of the 21st century was
its passage of the Human Rights Act 1998 which contained explicit protection for freedom
of association, ‘including the right to form and to join trade unions for the protection of …
interests’.34 This was a landmark piece of legislation. However, its protections only extend so
far as ‘prescribed by law and are necessary in a democratic society’.35 Put another way, the
protection extend to what the government of the day sets out.
    The Trade Union Act 2016 offers a recent example. It required trade unions to meet a
50% threshold of members voting in favour of industrial action in order for the action to be
legal.36 A study of industrial action between 2002 and 2014 found 85 of the 158 strike ballots
taken during the period would have met the 50% minimum.37 One may query the 50%
threshold. To suggest this is a ‘democratizing’ provision’38 strikes as disingenuous. If a similar

31 See nt. (28), 193.
32 President of the Board of Trade, Fairness at Work (Cm.3968) (London: The Stationary Office, 1998). Davies
& Freedland called it a ‘tour de force of draftsmanship’ insofar as it grounded a reason for Labour’s forthcoming
legislative intervention: see nt. (28).
33 Nolan P., Understanding the employment relationship: markets, hierarchies and power, in Industrial Relations Journal, 43,

2012, 359, 363.
34 Human Rights Act 1998, c.42, Art.11(1).
35 Ibid Art.11(2).
36 Trade Union Act 2016, s2.
37 Darlington R., Dobson J., The Conservative Government’s Proposed Strike Ballot Thresholds: The Challenge to Trade

Unions, Institute of Employment Rights, 2015.
38 Department of Business, Innovation and Skills (BIS), Consultation on ballot thresholds in important public services

(OGL 2015), [3].

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rule was applied to government elections, the 2012 London Mayoral election would have
fallen short (38.1%) as would the 2015 UK General Election (37% of voters, with less than
25% supporting the new government).39
    The 40% turnout threshold for ‘important public services’40 added to the hurdles for
industrial action in high union density areas. The meaning of the 40% threshold is that of all
members eligible to vote at least 40% of them must have voted in favour of industrial action.
The Trade Union Act 2016 provided employers with ‘fertile ground’41 when seeking
injunctions to stop industrial action. One may be mistaken for assuming that the Trade
Union Act 2016 was somehow a vestige of the 1980s. It was not. Its tenor, though, suggested
a similarly level of aggressive action towards trade unions; without acknowledging that the
1980s had muted trade unions’ impact.


3. Tweeting to unemployment.


   The discussion of freedom of association and trade unions underscored the continued
emphasis on facilitating economic growth. To meet this aim, it is said, there must be flexibility
for undertakings. In the case of employment, this means the unilateral decision-making
authority for employers to dispose of labour as they determine best. This ethos is also evident
when looking at the speech opportunities of workers. With advances in information
technology platforms, individuals have unprecedented means of communication. In the
employment context, however, these technologies are perilous as they present occasions
through which employment may be terminated. When considering the extent of the
employer’s prerogative, it may be surprising to some to see that there is remarkable authority
for employers; a power granted by employers through contract drafting.
   There is a dearth of reported decisions on the topic of social media and employment in
the UK42 that move beyond the employment tribunal stage. UK employment law generally
accepts potential harm to business reputation as grounds justifying discipline of workers for
work-related social media commentary. Enhancing protection for an employer, a well-crafted
policy or contract clause about social media usage can permit an employer to take a wide
variety of actions.
   One of the more widely noted rulings has been Smith v Trafford Housing Trust.43 The Trust
demoted Smith because his posts expressing his opposition to same sex civil marriage on his
Facebook page contravened its code of conduct and equal opportunities policy. Although
the defendant had breached the employment contract by demoting Smith when it had, 44


39 Statistics taken from Darlington, R., Dobson J., nt. (37), 11.
40 Trade Union Act 2016, s3.
41 Elgar J., Simpson B., nt. (12), 16.
42 This section draws from Mangan D., Online Speech and the Workplace: Public Right, Private Regulation, in Comparative

Labor Law & Policy Journal, 39, 2018, 357.
43 [2012] EWHC 3221 (Ch.).
44 Demotion was in lieu of dismissal for gross misconduct as a result of his many years of ‘loyal service’. The

result was a demotion to a non-managerial position with a 40% reduction in pay phased in over five months.

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Smith was only awarded salary for the twelve weeks before the assumption of his new
demoted role. Smith’s Convention claims (Articles 9 and 10) were dismissed because his
employer was a private entity. While not all share Smith’s beliefs, he has a right to state these
views (so long as they do not incite violence against the LGBTQ Community) without
necessarily suffering workplace discipline. Disciplining Smith seemed more attributable to
Trafford’s desire to protect its public identity. The Trust’s Code of Conduct stated: ‘given
the fact that much of our work is dependent on a positive public profile, we further expect
employees to promote a positive image of the Trust and of Trafford.’45 Smith presented a
repurposed freedom to say what we like as long as it does not generate harm, which includes
potential detriment to a business reputation as defined by employers.
    The scope of workplace policies has been extensive regarding the medium. Social media
policies will often include a broad provision defining unacceptable use of social media that
causes offence or brings the company into disrepute. In British Waterways Board (t/a Scottish
Canals) v Smith,46 the Employment Appeals Tribunal (EAT) determined the dismissal was
within the reasonable range of responses by the employer. British Waterways applied the
following policy: ‘The following activities may expose BW and its employees, agents and
contractors to unwarranted risks and are therefore disallowed: Any action on the internet
which might embarrass or discredit BW (including defamation of third parties for example,
by posting comments on bulletin boards or chat rooms)…..’ This case centred on trust;
suggesting that if the employer contends it has lost trust in the worker, dismissal may be
found to be a reasonable response.
    Based on the above decisions, business reputation is likely to be interpreted in a manner
that is so robust as to quell a remarkable range of comments which may or may not pertain
to the workplace. Important considerations include: comments which were posted over a
period of time; the existence of (and weight placed on) a policy related to the company’s
image; the impugned comments being read by others; how the worker uses the social media
platform(s) (though Smith suggests that this may be a contested point). Violation of a social
media policy usually leads to dismissal.47 While there is scope to call that standard into
question,48 generally courts will require only the potential for harm to business reputation.
Another important consideration, motive for a worker’s remarks on a social media platform
stands out as the basis for dismissal in Crisp v Apple Retail (UK) Ltd..49 Distinguishing his
remarks from those of a whistleblower,50 Crisp seemed motivated by embarrassing his



45 See nt. (43), Smith [21], [22].
46 Appeal No. UKEATS/0004/15/SM.
47 There is a rare opportunity for a worker to mitigate any damage and for this to render the dismissal unfair.
48 See the discussion in Whitham v Club 24 Ltd t/a Ventura ET/1810462/10 and Irwin v Charles Hurst Ltd. [2012]

NIIT 2254_12IT.
49 ET/1500258/11. Motive is a consideration at the European Court of Human Rights in adjudicating freedom

of expression issues in the workplace. See for example, Heinisch v Germany [2011] IRLR 923, [69]; Guja v Moldova
(2011) 53 EHRR 16, [77].
50 Whereas in the case of a whistleblower, the worker would have first communicated concerns to her employer

as in Heinsich [69]. In that decision, the European Court of Human Rights looked to establish ‘the individual
acted in good faith and in the belief that the information was true, that it was in the public interest to disclose
it, and that no other, more discreet means of remedying the wrongdoing was available to him or her’.

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employer. The duty of loyalty in employment, then, is part of the measurement in weighing
the worker’s right to freedom of expression against the interests of the employer.51
   Speech (like industrial action in the previous example) is framed as a disruption to
business. But this is speech in a particular setting because generally the UK has sought to
protect free speech. The different treatment in the employment setting underscores the
common though no less important power imbalance which can hinder the occurrence of a
free and open exchange.52 A strict view of business reputation is not the only interpretation
available. Furthermore, the punishment of dismissal is an extreme response53 to such a
nuanced challenge. These decisions contrast poorly with the movement in UK defamation
law to expand protection of free speech.54


4. Procedural Challenges.

   The above discussion has focused on freedoms of expression and association. In this final
section, some procedural aspects in bringing and hearing employment claims (in order to
give force to any workplace protections) are discussed. This may seem to be a technical area
to explore. No doubt it is. And yet, the procedural rules for bringing and hearing claims by
workers are often an underappreciated topic when considering the limitations (or otherwise)
on employers actions.
   While there are a number of ways through which workers’ employment may be
terminated, the most contentious is the disputed basis upon which an employer has dismissed
a worker. This situation arises when a worker has been dismissed with or without notice;
where notice is the period of time given to a worker prior to the official termination date.
Notice varies depending upon the amount of time a worker is employed – from one to twelve
weeks (the range spanning the period from one month to twelve years of employment). 55
Notice means that the employee may be obliged to work the entirety of that notice period
or that s/he may be paid the time ‘in lieu of notice’56 (instead of working the period of their
notice, the employer pays them for the equivalent time). Notice of termination is not needed
where the employee’s conduct falls under ‘gross misconduct’ which may include theft of
employer property.57 After two years of consecutive employment, employees may claim

51 This  is a consideration found in the European Court of Human Rights decisions on the topic. See Heinisch,
nt. (49), 64; Marchenko v Ukraine (2010) 51 EHRR 36, [45].
52 ‘the relative bargaining power of the parties must be taken into account in deciding whether the terms of any

written agreement in truth represent what was agreed and the true agreement will often have to be gleaned
from all the circumstances of the case, of which the written agreement is only a part. This may be described as
a purposive approach to the problem. If so, I am content with that description’: Autoclenz v Belcher [2011] UKSC
41, [35]. See also R (on the application of UNISON) v Lord Chancellor [2017] UKSC 21, [21], [24].
53 As identified by the ECtHR in Fuentes Bobo v Spain, App. No. 39293/98, 29 February 2000.
54 For an overview see, Mullis A., Scott A., Tilting at Windmills: the Defamation Act 2013, in Modern Law Review, 77,

2014, 87-109.
55 This is outlined in the Employment Rights Act 1996, s.86(1). Employees are obliged to give no less than one

week’s notice: s.86(2).
56 Employment Rights Act 1996, s.86(3) allows for this possibility.
57 This framework is consistent with Article 11 of the ILO’s Termination of Employment Convention 1982

(c.158): ‘A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or

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unfair dismissal protection as well as redundancy payments (the latter only if the individual
is dismissed for economic reasons). In total, this means that an employee may be dismissed
by an employer. There is no protection keeping an employee in work. There are two
procedural dimensions (often arising with dismissal) that affect the potential for employees’
opportunity to seek legal redress.
    The process of dismissal must be fair,58 but how this is assessed may be different from
other jurisdictions. Employment contracts often outline the process for grievances and
dismissals, including the details of any internal investigation route.59 The UK Supreme Court
has found that there is ‘an implied contractual right to a fair process’.60 While not binding,61
the Advisory, Conciliation and Arbitration Service (Acas) devised a code of practice on
disciplinary and grievance procedures which outlined elements of a fair process.62 In order
to claim unfair dismissal, an employee had to qualify through a period of consecutive
service.63 This had been one year: from the date of hire to the date of termination.64 In April
2012, an increase from one to two years of consecutive employment with the same employer
came into effect.65 The argument for extension of the qualification period was the difficulty
employers had in making such an important determination within one year of employing an
individual.66 Ewing and Hendy launched a fervent critique of the extended period.67 The


compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that
it would be unreasonable to require the employer to continue his employment during the notice period.’
58 ‘An employee has the right not to be unfairly dismissed by his employer’: Employment Rights Act 1996, s.94.

The right was first put forward in the Industrial Relations Act 1971, ss.22-23 and had followed a
recommendation in Donovan T., Report of Royal Commission on Trade Unions and Employers’ Associations (Cmnd
3623) (HMSO, 1968). Commenting on the 1971 Act, Lady Hale wrote in [2011] UKSC 58, [111]: ‘There is no
reason at all to suppose that, in enacting the Industrial Relations Act 1971, Parliament intended to cut down
upon or reduce the remedies available to employees whose employers acted in breach of their contracts of
employment. Quite the reverse. Parliament intended to create a new statutory remedy for unfair dismissal which
would supplement whatever rights the employee already had under his contract of employment. Parliament did
that because most employees had very few rights under their contracts of employment.’
59 An employer’s failure to adhere to this process would be relevant to a finding of unfair dismissal: West

Midlands Cooperative Society v Tipton [1986] AC 536. A failure to follow this process may allow the employee to
be granted an injunction: Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58.
60 West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [37].
61 Trade Union and Labour Relations (Consolidation) Act 1992, s.207(1) states: ‘A failure on the part of any

person to observe any provision of a Code of Practice issued under this Chapter shall not of itself render him
liable to any proceedings.’ However, an employment tribunal may increase or decrease the amount of an award
by no more than 25% where the Code applies, the employer failed to adhere to it, and the ‘failure was
unreasonable’: s.207A(2), (3). The power to decrease an award reflects where an employee failed to comply
with the Code.
62 Acas, Code of Practice 1: Code of practice on disciplinary and grievance procedures (published 11 March

2015), [4]. The Code can be found at: https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-
grievance-procedures/html
63 In UK terms, only employees have this right, not workers. This is a reference to the distinction set out in

s.230(3) of the Employment Rights Act 1996 which draws a distinction between two kinds of self-employed
individuals. The relation between a ‘worker’ under English law and an employee in EU labour law was touched
upon in Court of Justice, 22 April 2020, Case C-692/19, B v Yodel Delivery Network Ltd., Case C-692/19.
64 Employment Rights Act 1996, s.97 discusses the date of termination. Section 212 outlines how to calculate

the period of employment, particularly where there are breaks.
65 Section 108, Employment Rights Act 1996, as amended by the Unfair Dismissal and Statement of Reasons

for Dismissal (Variation of Qualifying Period) Order 2012.
66 Beecroft A., Report on Employment Law, 24 October 2011, 4.
67 Ewing K.D., Hendy QC J., Unfair Dismissal Law Changes – Unfair?, in Industrial law Journal, 41, 2012, 115.



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authors challenged the premise of the reforms pointing to the absence of support for the
assertion: ‘In the light of the government’s statistics, it is therefore hard to understand Mr
Osborne’s comment that introducing tribunal fees would end “the one way bet against small
businesses”’.68
   Second, the scope for employment tribunals to assess an employer’s decision to dismiss
an employee has been narrow. This assessment has been called the reasonable responses
test.69 Pursuant to statute, the employer must provide the reasons for dismissal.70 The tribunal
may only evaluate whether the employer genuinely believed the employee’s alleged conduct
constituted misconduct and this entails consideration of the reasonableness of the employer’s
investigation as well as the grounds for the employer’s belief.71 The tribunal may only
consider whether the employer acted as a reasonable employer would have.72 This latter point
has been the subject of some concern, specifically over the ‘substitution mindset’: that an
employment tribunal becomes sympathetic to the claimant’s cause and is ‘carried … away
from the real question – whether the employer acted fairly and reasonably in all the
circumstances at the time of the dismissal’.73 In order to satisfy the test, a tribunal is only
permitted to consider whether the employer’s response fell outside what a reasonable
employer would have done. This benchmark insulates employers from penetrating analysis
by employment tribunals.


4.1. Access to Courts.

   In 2013, the UK Government introduced fees for bringing employment claims.74
Considering that there are fees for launching litigation in courts, the idea of fees for in order
to bring an employment tribunal claim is not novel. The UK Supreme Court, in R (on the
application of UNISON) v Lord Chancellor,75 found the 2013 tribunal fees scheme (the structure
of fees for launching employment claims) to be unlawful. The Supreme Court did not write
of fees themselves being unlawful:

  In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of
demand was greatly underestimated. It has not been shown that less onerous fees, or a more generous


68   Ibid, 120.
69 Employment     Rights Act 1996, s.98.
70 Employment Rights Act 1996, s.98(1)(b)-s.98(3).
71 British Home Stores Ltd v Burchell [1980] ICR 303 (EAT) (approved by the Court of Appeal in Weddel &

Co Ltd v Tepper [1980] ICR 286). See also HSBC Bank plc v Madden [2000] EWCA Civ 3030. Sainsbury’s
Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 held that the reasonableness of the investigation will be
assessed based on the reasonable responses test. Section 98(4) of the Employment Rights Act 1996 also requires
fairness in procedures which involves looking at the Acas Code on Disciplinary Procedures and the general
requirements of a fair procedure.
72 Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 (EAT).
73 London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220, [43]. See also HSBC Bank plc v Madden

[2000] EWCA Civ 3030, [51]-[53].
74 This section draws from Mangan D., ‘nt. (9).
75 [2017] UKSC 51.



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system of remission, would have been any less effective in meeting the objective of transferring the
cost burden to users.76

    There remains scope for fees and the question of the threshold at which the level of fee
constitutes ‘a degree of intrusion as is reasonably necessary to fulfil the objective of the
provision in question’.77
    Unison has given rise to discussion of ‘common law fundamental rights’.78 It has been
praised for providing superior protection than EU law because ‘the rule of law recognised in
Unison combined with the common law right of access to the courts … provide a clearer and
higher level protection’.79 For good reason, Unison recognised, amongst other points, the
importance of court decisions giving effect to rights. These decisions have a social utility
insofar as they recognise the enforcement of rights.80
    Nevertheless, Unison does not preclude the charging of fees to bring employment claims.
While it may be unfavourable, the impugned fee scheme in Unison was a good target because
there was no rationale for the rate of the fees, which were quite high. The extreme nature of
the fees were reminiscent of another notable recent appellate level decision in labour law,
Saskatchewan Federation of Labour v Saskatchewan.81 Saskatchewan rewrote Canadian labour law
textbooks by recognising that s.2(d) of the Canadian Charter of Rights and Freedoms protected
a right to strike.82 And yet, the challenged legislation, the Public Service Essential Services Act,83
granted the drafting government the unilateral authority to declare any public sector workers
as ‘essential service employees’; prohibiting them from participating in strike action. The
identification of essential service employees was even beyond adjudication by a labour
relations board. Given the scope of the legislation, surprise would have been slight that such
a one-sided statute was found to have violated s.2(d).
    Unison does not preclude the UK government from returning to fees for raising an
employment tribunal claim (or a combination of fees and remission schemes). 84 There may
be a building argument for reintroducing fees85 but in a format that is explicable and


76 Unison, nt. (52), 100. Emphasis added.
77 Ibid., 80.
78 See Bogg A., Common Law and Statute in the Law of Employment, in Current Legal Problems, 69, 2016, 67. See also

Ford QC F., Employment Tribunal Fees and the Rule of Law: R (Unison) v Lord Chancellor in the Supreme Court, in
Industrial Law Journal, 47, 2018, 1; Bogg A., The Common Law Constitution at Work: R (on the application of UNISON)
v Lord Chancellor, in Modern Law Review, 81, 2018, 509.
79 Ford, nt. (78), 3.
80 ‘In order for the rights conferred on employees to be effective, and to achieve the social benefits which

Parliament intended, they must be enforceable in practice’: Unison, nt. (52), 6.
81 2015 SCC 4.
82 Of note for an Italian audience, Saskatchewan set aside the interpretation dating back to a decision of the

Supreme Court of Canada from 1987 that freedom of association was an individual right and thereby accorded
a limited interpretation.
83 SS 2008, c.P-42.2.
84 This is a power granted by the Tribunals, Courts and Enforcement Act 2007, s.42.
85 The total number of employment claims filed since the UKSC’s decision in Unison has increased markedly:

Ministry of Justice, Tribunal and Gender Recognition Statistics Quarterly (October to December 2017)
Provisional (8 March 2018), 7. Likely contributing to the increase is the Government’s plan, Gender Pay Gap,
which requires employers to publish gender pay gap information as of April 2018:
https://www.gov.uk/government/news/view-gender-pay-gap-information

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comparatively justifiable. On this point, the County Court fees were classified in Unison as
having a ‘less deterrent effect’.86 Comparing employment tribunal fees with the County Court
(small claims), fees for the latter were based upon the claim’s value. Employment tribunal
fees were divided into two categories of claims without reference to value. The Supreme
Court assessed the County Court fees as having been ‘designed in a way which is likely to
have a less deterrent effect on the bringing of small claims.’87 What is intriguing about this
assessment is that the fees seem to be more severe for the lowest amounts, moving to a lower
proportionate figure as the claim value increases. Where the value was £300, the fee was £50
or approximately 17% of the total value. When the fee reached £745, the percentage total
value varied from 14.9% (£5000) to 7.45% (£10,000). Though these percentages may not be
as disproportionate as some of the results with the former ET fees’ scheme, there is scope
here for future fees to be significant without necessarily being assessed as having a deterrent
effect. With this in mind, attention should be paid to the nature of claims made because
claims such as unfair dismissal are likely for much higher sums than for alleged violations of
National Living Wage. The October to December 2017 data showed a notable number of
claims for unauthorised deduction of wages with a remarkable increase from November
(1,452) to December (6,325). It is likely that these claims would not be for large sums. An
exemption for small business from certain employment protections may be contemplated.88
    If a revised fee scheme (or perhaps other regulation) was to be introduced, Unison firmly
entrenches the courts’ role as moderator. This is consistent with the rule of law. The
imbalance of bargaining power between parties recognised at common law, as noted in recent
Supreme Court decisions,89 has set out one parameter to adjudication. And yet, there is a
question as to the extent of the courts’ role, particularly in managing this balance. Courts
remain better equipped to dissect rights as concepts rather than the precise details of these
concepts.


5. Conclusion.

   The collective attenuation of UK workers’ freedom (and arguably dignity as it is
understood under the Italian Workers’ Statute) outlined above should be viewed as
significant. These instances are more than measures to strengthen an economy. The unilateral
authority to determine what online speech is proper based on a commercial assessment
should be the subject matter of more concerned discussion. The UK has a long tradition of
free speech, particularly the free press, that it calls upon. It remains curious that status as a
worker (of some kind) could undercut such an important freedom to a democracy. Where
past examples of flexibility were formalised and specific, the casual treatment of important
freedoms in a democracy instituted a grander flexibilisation effort. There were disincentives


86 See Unison, nt. (52), 20.
87 Ibid. [20].
88 Of interest, this argument would allude to ILO Convention 158, Art.2(5).
89 Autoclenz v Belcher [2011] UKSC 41, [35]; Unison, nt. (52), 21, 24.



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to taking steps to utilise rights; but, most importantly, there was no formal, overt attempt to
block them.


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Copyright © 2020 David Mangan. This article is released under a Creative Commons
Attribution 4.0 International License




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