Entrevista al Profesor Jo Carby-Hall. Por Mª del Carmen Jover Ramírez 4 May 2017
La actual situación de Reino Unido en su camino para dejar la Unión Europea hace emerger en estos momentos el interés por conocer algo más de su sistema normativo, de la estructura de poderes y de la incidencia que el Brexit pudiera tener en el Derecho laboral británico. Y ello como pista, quizás, para tratar de entender el porqué de esa decisión del pueblo británico.
Gran conocedor del Sistema Británico en toda su extensión, el Profesor Jo Carby-Hall ha tenido la gentileza de ofrecernos en la siguiente entrevista una magnífica y completa visión de ese entramado legislativo, de las particularidades del Sistema y de las posibles consecuencias del Brexit, acercándonos así a la actual situación de la que tanto oímos pero de la que quizás poco conocemos.
Professor Jo Carby-Hall, Knight of the Cross of the Order of Merit of the Republic of Poland, Officer of the Cross of the Order of Merit of the Republic of Poland, Commander of the Cross of the Order of Merit of the Republic of Poland, Officer of the Most Excellent Order of the British Empire, Royal Navy Reserve Decoration, MA (French, Italian); LLB, PhD, D. Litt, LLD h.c. Advocate. Director of International Legal Research, Centre for Legislative Studies, School of Law and Politics, Faculty of Business, Law and Politics, University of Hull
Carmen Jover Ramírez (CJR): Could you explain the general characteristics of the British Labour Law System?
Jo Carby-Hall (JCH): British labour law enjoys numerous sources and has a number of characteristics. Historically, the law which regulates the relationship of employer and employee was to be found in the old common law1 of master and servant but with the industrial revolution in the 18th and early 19th centuries, greater complexity developed in the relationship of employer and employee. Dangers to health, welfare and safety of employees became greater as a result of the use of machinery and with larger workforces employed in factories. The common law was not adequate to cope with those changing patterns and as a result the British Parliament had to intervene by enacting a variety of statutes, – such as the numerous Factories Acts, – to protect employees and remedy the deficiencies of the common law. Statute law thus modified these deficiencies and shortcomings of the common law. Despite that, the common law still plays a significant and important role in regulating labour relations. It may thus be said that the amalgam of statutory law and common law constitutes the two main sources of British labour law. With Brexit on the horizon, it is suggested that the UK will revert, after two years from the implementation date of Article 502 of the Lisbon Treaty, to the position it was in before the European Communities Act 1972, which brought the UK into what was then the European Communities. (EC).3 The Great Repeal Bill will, – when it is enacted by the Westminster Parliament into an Act, – bring the UK to the position it was in before the UK joined the EU. Thus both the common law and statute will continue to form the main sources of British labour law but the EU social legislation which has been translated into British law will still form a very important source of law in the UK because British judges, although no longer bound by EU social laws and the CJEU rulings, will treat the CJEU decisions as persuasive in their judgements. It may therefore be said that the common law, British statutes and European law form three most important sources of British labour laws.
Something needs to be said about the relationship of this third source of British labour laws, namely the European social laws and their effect on British laws as a source of British labour law. It is most important to note that when the UK joined the EC in 1972 it became subject to the supremacy of both the EU legislation and also to the judgements of the Court of Justice of the European Union. European social laws made a significant contribution to British labour laws and it is thanks to the EU legislation that British workers and employees4 have been granted additional and significant social rights which were not available under British laws. Those EU laws consist of (a) European social law Regulations which are directly (and therefore do not need implementation) incorporated into British labour law and (b) Directives, which need to be implemented into British law by Ministerial Regulations, Orders, Decrees or Acts of the Westminster Parliament.
It is not proposed (for it would be irrelevant to your question) to give you a list of this EU legislation implemented into, and thus forming an important source of, British law suffice to say that, generally speaking, the UK has implemented diligently, – and will continue to do so during the Brexit two year “gestation” period while it remains a member of the EU, – most5 of the EU laws.
A characteristic of British labour law is that its finds its origins in the law of contract, the law of tort, property law, criminal law and social security law. Thus a contract of employment, although different from other contracts, if founded on the law of obligations, the civil liability of trade unions and their officials when industrial action,- namely strikes, go –slows, working to rule, etc..- is taken is based on the law of tort of inducing or procuring, directly or indirectly, breaches of employment and commercial contracts, picketing could infringe property law, and violence, such as obstructing, grievous bodily harm, trespassing on the picket line may infringe the criminal law as would fraudulent acts in social security laws.6
CJR: Could you explain the law on agreements between employers and trade unions? Specifically the legal status of Collective Agreements.
JCH: At both common law7 and under statute8 the British collective agreement is presumed by the parties, namely trade union(s) and employers or employers’ associations, not to be a legally binding contract because there is the presumption that neither party intends to make such an agreement legally binding.9 It is considered to be a gentleman’s agreement enforceable, not in the courts, but through industrial relations.10 This has invariably and constantly surprised my continental and world friends and colleagues for in no other country (to the best of my knowledge) in the world is the collective agreement considered to be a non-legally binding document.
Statute clearly states that such an agreement “shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract.” However, should the parties intend their collective agreement to be legally binding contract, they may so do subject to the agreement, or part thereof, being in writing and containing a statement stating that the parties intend to be legally bound.11 Extensive research carried out by me has shown that the social partners invariably never have the intention to be legally bound. It is too complicated to give you the reasons for this phenomenon in an interview as one has to delve deeply into its historical background.
We must also differentiate between a collective agreement (which can be national, regional or local) and a procedure agreement. Put simply, a collective agreement treats terms and conditions of employment of employees whereas a procedure agreement deals with the procedure(s) to be followed by the social partners between themselves. Such procedures may include times of and procedures in social partners’ meetings, the provision of an office and office facilities for the trade union representative by the employer, dispute resolution procedures, the constitution of joint negotiating bodies and so on.
You may well wish to query the fact of a collective agreement (or even the procedure agreement) being a legally not binding document and ask yourself the following question, namely “What then is the use of entering into such agreements if they are legally unenforceable? Why waste the social partners’ time entering into these agreements? The answer is simple! As soon as the collective agreement is incorporated into the contract of employment of the employee, it then becomes a legally enforceable term of the contract of employment of the employee and if the employer breaches such a term he could be made legally liable for breach of contract and may have to pay damages to the employee. Similarly if the employee breaches such term the employer would be enabled to discipline the employee or even dismiss him/her if the breach is in essencialibus or in substancialibus, in other words, so fundamental a breach which goes to the root of the contract.
You may also ask, “How does incorporation of the collective agreement terms into the individual contract of employment take place?”12 Such question is very difficult to answer because it depends on the circumstances of each individual case. Put simply however, there are two ways in which incorporation may take place. Incorporation of the collective agreement may be express or implied. Express incorporation is when the employers tells the employees either in writing, verbally or through notices on a notice board that their contractual terms will be in accordance with the social partners’ agreed terms in their collective agreements entered into from time to time. Implied incorporation is a trickier phenomenon. The tribunals and courts will examine, inter alia, if (a) there has been specific knowledge by the employee of the collective agreement; (b) there was conduct on the part of that employee from which it was manifest that he/she accepted the agreement and worked under it; (c) there was some indication of incorporation of that collective agreement in that contract of employment.13
I hope that that answers your question.
CJR: Could you explain the system of the British Judge? (Tribunals, Court of appeal, House of Lords…)
JCH: Your question falls into the realm of the English legal system.14 English judges do not study to become judges, nor do we have a school for judges15 as happens in most continental countries such as Poland, France, Italy, etc.. Judges are appointed by the Lord Chancellor from experienced and respected barristers and solicitors. As you may know, in England the legal profession comprises of barristers-at-law and solicitors. Generally speaking, one may say that solicitors see the client and advise him/her accordingly and deal with all the paperwork of a case whereas a Barrister pleads in courts and tribunals and has a right of audience in all courts including the Supreme Court. The above statement is very much of a generality because solicitors also plead in court and barristers also do paperwork such as giving legal opinions. Clients cannot go directly to a Barrister, it is the solicitor who puts the client in contact with the Barrister.
There is a variety of judges in the English court system. In criminal courts judges are appointed to the Crown Court, in civil cases judges are appointed to the High court. Progression may take place from the Crown Court or the High Court judges to the Court of Appeal Criminal of Civil Division. In the Court of Appeal judges are called Lord Justices (e.g. Stevenson LJ.) From the court of Appeal there is further progression to the Supreme Court where judges are referred to as Justices. It is only comparatively recently that the Supreme Court was established. Prior to it the British Supreme Court nomenclature, it was known as the House of Lords. An important reason what the HL was renamed SC was that it offended against Montesquieu’s “Séparation des pouvoirs” doctrine for the Law Lords, as they were known at the time, formed part of the executive, the legislature and the judiciary!
In the labour law field the hierarchy of tribunals and courts consists of Employment Tribunals (ET), staffed by solicitors or Barristers who are known as judges,(with two laymen who represent employers and trade unions respectively), the Employment Appeal Tribunal (EAT) which is equivalent to the High Court and staffed by High Court judges. The Court of Appeal (CA) staffed by Lord Justices (LJ) and the Supreme Court (SC) staffed by Supreme Court Justices each of whom hold the title of “Lord.”
It should be noted that as a member of the EU, the UK is subject to the CJEU which is the highest court, but only on issues relating to European laws. After Brexit, the CJEU will not function as such but its judgements will be persuasive on British laws which emanate from EU laws.
There is very much more to say on both the English court system and the English judges but I think that the above should give you general answers to your question. Any additional information would cause you severe indigestion!
CJR: At the end, what is your opinion about the likely incidence of Brexit in the British labour System?
JCH: In order to answer your question I cannot do better than to refer you (a) to my 49 page chapter16 entitled “The Effect of Brexit on British Industrial Relations Laws and its Commercial and Constitutional Consequences.” (b) in connection with maritime law, may I invite you and your readers to consult my 17 page chapter entitled “The Impact of Brexit on Seafarers’ Employment” to be published in a book of maritime conference papers in late 2017, (c) to the interview carried out by Professor Annina Bürgen, formerly of Vigo University, which as I understand it, will be published in May, 2017 in the inaugural newsletter of the Maritime Institute of Campus do Mar and (d) to “‘Brexit Means Brexit:’ Comment cela Affectera-t-il le Droit du Travail” Presses Universitaires de Bordeaux to be published in circa August 2017.
A summary of my paper given at the international seminar held in December, 2016 at Alcalá de Henares University is as follows. I attempted therein a tentative answer on what future changes were likely to take place as a result of Brexit with regard to the European social laws currently incorporated into British laws. I did stress strongly the speculative element in doing so.
You will recall my dividing those laws into three categories. The first category treated laws which could be heavily amended or repealed, the second category dealt with laws which would require either minor amendments or remain unchanged, while the third category dealt with a law which would definitely be repealed. Not being directly relevant to labour lawyers, this law falling in the latter category will not be mentioned here. What will feature here are the category one laws which include agency, fixed term and part-time workers, working time and collective redundancy consultations and category two laws which treat transfer of undertakings, discrimination compensation, family friendly legislation, written particulars of employment, health and safety at work, consultations relating to European works councils, information and consultation and judgements of the CJEU and their interpretation by British judges.
What had been pointed out was that the British labour law landscape will not metamorphose overnight in any fundamental manner in the short term. In the long term, minor or major modifications and repeals to existing British laws with a European social law element will depend upon the colour of successive future British governments.
CJR: Professor Carby-Hall, thank you very much for answering those questions. It is a pleasure to have you on our Orbitados website.
Director of International Legal Research
Centre for Legislative Studies
School of Law and Politics
Faculty of Business, Law and Politics
University of Hull
15th April, 2017
1 The common law consists of judge-made law and is based on the concept of judicial precedent. It is the ratio decedendi , namely, the reasoning behind the judgement, which is subject to judicial precedent and which is binding on the judge of a lower court. What the judge says “Obiter” in the judgement in a higher court does not form part of judicial precedent, but may be taken into consideration by the judge in his/her judgement and thus have persuasive effect. The judicial precedent concept which forms a very significant part of the common law means, that judges of the lower courts are bound by judgements of the higher courts in cases where the facts are identical or similar to the case being tried. Thus an Employment Tribunal (ET) would be bound by the decision of an Employment Appeal Tribunal (EAT) if the facts of the EAT case are identical or similar to those of the ET case. Similarly, the EAT is bound by a Court of Appeal (CA) judgement, and the CA is bound by a Supreme Court (SC) judgement where the fact of the case are identical or similar. The SC is not however bound by its own decisions. The Judicial Precedent concept thus allows for a modicum of continuity in the British legal system. It also allows for some flexibility of British judges creating law rather than interpreting it. For a detailed analysis of the British judges’ law- making powers see Jo Carby-Hall “The Digestive System of the British Judge” in “Variaciones Sobre Derecho del Trabajo en Perspectiva Comparada” (Joaquín Garoía Murcia (Ed)) Liber Amicorum, Antonio Martín Valverde. (Volume 2.) (2015) Editorial Tecnos at pp. 133 – 161. Therein will be found some judgements of the famous (and this interviewee’s legal idol!!!) Lord Denning and other House of Lords (as the SC was then called) and lower court judges seen as law-makers. It should also be noted that, the other EU Member States,- apart from Cyprus and Malta,- operate a codified system of law which is different to the British common law system and where their judges’ law-making powers are somewhat less accentuated.
2 29th March, 2017.
4 For a distinction between workers and employees see Jo Carby-Hall “New Frontiers of Labour Law: Dependant and Autonomous Workers.” in “Du Travail Salarié au Travail Indépendent: Permanences et Mutations” (Bruno Veneziani et Umberto Carabelli (Eds)) European SOCRATES Programme. (2003).Cacucci Editore. Italia. at pp. 163 – 308 particularly pp. 246 – 282.
5 The word “most” is used judiciously here because the UK has negotiated numerous opt-outs which the EU and the other Member States have patiently tolerated. The most flamboyant examples of opt-out clauses are those relating to the Working Time Directive provisions. For a detailed analysis see Jo Carby-Hall “Opt-outs and Variations in Working Time – British Style” in “Le Travail Humain au Correfour du Droit et de la Sociologie” Hommage au Professeur Nikitas Aliprantis, (Christian Mestre, Corinne Sachs-Durand et Michel Storck (Eds)) (2014) Presses Universitaires de Strasbourg at pp. 53 – 71 and Joseph R. Carby-Hall “Working Time: The British Experience” in “Regnare, Gubernare, Administrare” Liber Amicorum in honour of Professor Jerzy Malec. (Volume 1) (Stanisław Grodzinski and Andrzej Dziadzio (Eds)) (2016) at pp. 367 – 397. See also the interview on “The Effect of Brexit on British Maritime law” which I had with Professor Annina Bürgen to be published (in circa May, 2017) in the inaugural newsletter of the Spanish Maritime Institute of Campus do Mar relating to certain EU maritime laws not yet (at the time of our interview on 19th March 2017) implemented into British legislation.
7 See Ford Motor Co. Ltd v Amalgamated Union of Engineering and Foundry Workers [1969] 2 QB 303.
8 Trade Union and Labour Relations (Consolidation) Act 1992 s. 179
9 An evaluation and analysis on the non-enforceability presumption and other aspects of the British collective agreement will be found in Jo Carby-Hall “The Legally Enforcible/Non Enforcible European Collective Agreement? A Discussion Paper” Managerial Law. Volume 41 No. 4 (1999).
10In other words, through further collective bargaining, conciliation, mediation, arbitration or, as a last resort, industrial action.
13 See the judgement in Joel v Cammel Laird (Ship Repairers) Ltd. [1969] ITR 206. In this case Joel knew of the collective agreement, appreciated that it imposed obligations on employees and had previously worked on the basis of such collective agreements’ terms. He was therefore bound by that collective agreement which was impliedly incorporated into his contract of employment.
14 Please note that the Scots law system is somewhat different to the English law system. The same is true, though not as accentuated as in Scots law, of Northern Ireland law. In this part I am referring solely to English and Welsh laws.
16 Entitled “The Effect of Brexit on British Industrial Relations Laws and its Commercial and Constitutional Consequences” to be published in a book of conference papers by Cambridge Publishers scheduled for publication in June 2017. That same chapter will be published as an article in a Spanish labour law and social security e- journal edited by Professor Pilar Contreras. It is presumed that it will be published prior to the publication of the book chapter.