Introduction

Professor Lord Wedderburn QC, FBA, ‘Preface’ to Lord Wedderburn, Labour Law and Freedom (1992).

31.42 million in work as at January 2016, of whom 22.94 million worked full-time and 8.48 million part-time: ONS, UK Labour Market: March 2016 (ONS, 16 March 2016).

In a quarterly survey in 2011, only 67% of British workers were satisfied with their current employer (i.e. some 10 million were not), a lower score than France (68%), Germany (68%), Australia (70%), Belgium (73%), New Zealand (73%), USA (74%), Netherlands (74%) and Canada (77%). In the last 11 quarterly surveys, polling approximately 18,000 workers, Britain's employees have been the least satisfied workers nine times. In terms of job fulfilment the UK does even worse at 62% expressing job satisfaction (Randstad UK plc, Fulfilment at Work (2014)). In the United Kingdom, 15.2 million days were lost due to stress, depression and anxiety (categories which exclude serious mental health problems such as manic depression and schizophrenia): ONS, Sickness Absence in the Labour Market, February 2014 . Note the rise in suicide rates and self-harm caused by the 2008 crash: D Gunnell, J Donovan, M Barnes, R Davies, K Hawton, N Kapur, W Hollingworth and C Metcalfe, The 2008 Global Financial Crisis: Effects on Mental Health and Suicide (Policy Report 3/2015, University of Bristol, 2015).

Around one in three UK workers say they are affected by workplace bullying: http://www.bbc.co.uk/news/business-33993526; see also ACAS Policy Discussion paper Seeking Better Solutions: Tackling Bullying and Ill-treatment in Britain's Workplaces (November 2015): http://www.acas.org.uk/media/pdf/e/b/Seeking-better-solutions-tackling-bullying-and-ill-treatment-in-Britains-workplaces.pdf.

Unlike several States in Europe, there is no ‘dual channel’ for democratic participation; there is no provision for worker directors or works councils. For the 80% of British workers who do not have the benefit of collective bargaining, there is no way of making their voice heard save in the almost non-existent but legally specified situations in which a right to consultation arises. It is true that many employers have a (voluntary) grievance procedure but no one who has any experience of raising grievances could suggest that this was a mechanism for workplace democracy.

UK workers have the longest usual working week of any country in Europe at 42.5 hours: J Cabrita and S Boehmer, Working Time Developments in the 21st Century: Work Duration and its Regulation in the EU (European Foundation for the Improvement of Living and Working Conditions, 2016), at pp 54, 56 and 58. The gap between the usual working hours for men and for women is much greater in the United Kingdom than anywhere else in Europe at 3.2 hours per week. ‘The most striking finding is that, for both the whole economy and for the different sectors included here, the usual weekly working time is, on average, shorter in countries with a working time regime where collective agreements, especially sectoral ones, play an important role’ (ibid., p 55). In 2015, some 5.1 million employees put in an extra 7.7 hours (on average) per week in unpaid overtime worth some £35.1 billion to their employers: P Sellers, ‘Unpaid Overtime Can't be a Blank Cheque’, Touchstoneblog.org.uk , TUC, 26 February 2016. Since 2010, the number of people working in excess of 48 hours has risen by 15% to 3,417,000 (TUC, September 2015 at https://www/tuc.org.uk/international-issues/europe/workplace-issues/work-life-balanc/15-cent-increse-people-working-more).

UK workers will share the oldest official retirement age of any country in Europe at 68 with Ireland and the Czech Republic compared with an average of 65.5 across the developed world: OECD, Pensions at a Glance 2015, OECD and G20 Indicators (2015).

At 38% of salary (including both State and private pensions) compared with Netherlands at more than 90% and 80% in Italy and Spain: OECD, ibid.

The ILO has reported that of 24 countries surveyed, the United Kingdom had the fifth highest level of mismatch of education level for occupation, with 28.9% of its workforce in jobs not suited to their education level. Of this group, 13.9% had a lower than average education level for their occupation: ILO, Skills Mismatch in Europe (2014) (http://www.ilo.org/wcmsp5/groups/public/—dgreports/—stat/documents/publication/wcms_315623.pdf).

In 2014, on an output per worker basis, productivity in the United Kingdom was 19% lower than the average for the rest of the G7, the widest productivity gap since records began in 1991. Per hour worked, UK productivity is 45% lower than the Netherlands, 36% lower than Germany, 34% lower than Belgium, 31% lower than France, 30% lower than Ireland and the USA, 10% lower than Italy and 5% lower than Spain. UK productivity is just a fraction higher than it was in 2007, whilst other countries have increased their productivity: ONS, International Comparisons of Productivity, 2014 – Final Estimates , 18 February 2016; and see J Dromey, ‘Introduction’ in J Dromey (ed.), Involvement and Productivity – The Missing Piece of the Puzzle? (IPA, 2016), pp 1–2.

16th position out of 16 European countries surveyed in R Ray and J Schmitt, ‘No-Vacation Nation USA – A Comparison of Leave and Holiday in OECD Countries’, European Economic and Employment Policy Brief, No. 3 (2007); and see http://www.independent.co.uk/news/business/news/uk-paid-leave-holiday-ntitlement-compares-to-eu-countries-in-europe-incharts-a6881456.html.

16.8% of the UK population were in poverty in 2014, the 12th highest rate in the EU; between 2011 and 2014, a staggering 32.5% of the UK population experienced poverty at least once: ONS, Persistent Poverty in the UK and EY: 2014 , ONS, 16 May 2016. The population of the UK in 2014 was 64,596,800 million (http://www.ons.gov.uk/peoplepopulationandcommunity/population and migration/population estimates). This means that 10,852,000 people were in poverty in that year.

21% of employees (5.5 million people) were low paid in Great Britain in April 2014, and this proportion has changed little over 20 years: A Corlett and L Gardiner, Low Pay Britain 2015 (Resolution Foundation, 2015), p 18. No less than 22% of employees (5.7 million) earned less than the Living Wage, and 5% (1.4 million) were on the Minimum Wage, ibid., p 19. The Living Wage Commission found that ‘While overall poverty rates are falling… the nature of poverty is changing dramatically. For the first time, there are now more people in working poverty than out-of-work poverty. 6.7 million of the 13 million people in poverty in the UK are in a family where someone works. That is 52% of the total’ (The Living Wage Commission, Working for Poverty (2014), https://www.nuj.org.uk/documents/working-for-poverty-living-wage-commission-report/living-wage-commission-report-v2-f-1.pdf). The reversion since the late 1970s to a Speenhamland system of public subsidy for low wages and its disastrous effects are well described in F Wilkinson, ‘The Theory and Practice of Wage Subsidisation: Some Historical Reflections’, in F Bennet and D Hirch (eds), Tax Credit and Issues for the Future of in Work Support (Joseph Rowntree Foundation, 2001).

The gender difference in average pay for work of equal value is bad enough at 9.4%. But the gender pay gap (caused by occupational segregation, part-time working and caring responsibilities) is no less than 19.2% across all ages and 27.3% for those between 50 and 59: House of Commons Women and Equalities Committee, Gender Pay Gap , HC 584 (2015–16).

It now stands at 183:1 in the United Kingdom: High Pay Centre, Executive Pay Continues to Climb at Expense of Ordinary Workers (2015). The High Pay Centre has found a negligible link between incentive payments to executives and returns to shareholders (High Pay Centre, No Routine Riches: Reforms to Performance Related Pay (2015)). Inequality of wealth and income is not unique to the United Kingdom (Oxfam, An Economy for the 1%: How Privilege and Power in the Economy Drive Extreme Inequality and How This Can be Stopped , Oxfam, 18 January 2016), but it is certainly striking in the United Kingdom (C Belfield, J Cribb, A Hood and R Joyce, Living Standards, Poverty and Inequality in the UK: 2015 (Institute of Fiscal Studies, 2015)). And inequality affects all spheres of life from health and life expectancy to the rate of teenage pregnancy (Britain has the highest rate of teenage pregnancy in Western Europe: Family Planning Association, Teenage Pregnancy Factsheet , August 2010) and educational attainment (OECD, Education at a Glance 2015: OECD Indicators , OECD, 2015). Social mobility is at a standstill if not in reverse (J Goldthorpe, Social Class Mobility in Modern Britain: Changing Structure, Constant Process (Lecture to British Academy, 15 March 2016).

At 14.5%, just below the EU average of 16.5% (OECD, Employment Outlook , 2015). The United Kingdom has 3,275,000 full-time and 1,357,000 part-time, that is, a total of 4,632,000 self-employed workers in December 2015: ONS, LFS Self-Employment , 16 March 2016. Of these, 51% earned less than 2/3 full-time workers' median earnings: A Corlett and L Gardiner, Low Pay Britain 2015 (Resolution Foundation, 2015), p 21. False self-employment is on the rise across Europe: A Thörnquist, ‘False Self-Employment and Other Precarious Forms of Employment in the “Grey Area” of the Labour Market’ (2015) 31 International Journal of Comparative Labour Law and Industrial Relations 411.

And some of the least regulated agency workers in the OECD: OECD, ‘Protecting Jobs, Enhancing Flexibility: A New Look at Employment Protection Legislation’, in OECD, Employment Outlook 2013 (2013), p 92.

See OECD, Employment Outlook 2015 (2015), p 281, Table J.

ONS ( Contracts that do not Guarantee a Minimum Number of Hours: March 2016 ) reports that 801,000 workers thought they were on zero-hours contracts, whereas employers recorded 1.7 million zero-hours contracts where the worker actually worked during the fortnight surveyed and a further, staggering, 2 million contracts where the worker carried out no work during the fortnight. The employer count is more likely to be correct although it must be discounted for workers holding more than one contract.

The United Kingdom has the 4th highest proportion of part-time workers behind the Netherlands, Austria and Germany. Source. Eurostat (lfsa_eppga); see also http://www.keepeek.com/Digital-Asset-Management/oecd/employment/oecd-employment-outlook-2015_empl_outlook-2015-en#page2, p 279, Table H. The numbers of part-time workers wanting full-time work increased from 8.5% in 2005 to nearly 19% in 2014, see Eurostat data March 2016 [lfsa_eppgai]. See also OECD, Employment Outlook 2015 (2015), p 280, Table I.

131 million days were lost to sickness absence in the United Kingdom in 2013: ONS, Sickness Absence in the Labour Market , February 2014.

European Parliament, ‘Maternity and Paternity Leave in the EU’, infographic , December 2014.

Writing in the Senior President of Tribunals' Annual Report , February 2016, Mr Justice Langstaff, the President of the EAT referring to the fall in ET claims between January 2012 to June 2015 said, ‘Fees are new; fees have an obvious potential to change the behaviour of litigants; and what appears to be a “cliff-face drop” in the number of applications became apparent so shortly after the introduction of fees as to suggest an actual temporal, and probably causal, connection’. See also A Moretta, Access to Justice: Exposing the Myths (Institute of Employment Rights, 2016).

The total number of HSE staff in post fell from 4,019 in 2004 to 2,621 in 2014. Over the same period, the number of Local Authority Health and Safety Inspectors fell from 1,140 to just 800. Similarly, funding to the HSE was slashed from £209 million in 2004/2005 to £154 million in 2013/2014, in real terms, a cut of approaching 50%. See S Tombs, Social Protection After the Crisis. Regulation without Enforcement (2016). Even the government has now accepted the imperative for some additional inspectors for certain forms of exploitation: Home Office, Tackling Exploitation in the Labour Marker: Government Response (Home Office, January 2016).

Tony Blair, in an article he wrote in The Times , 31 March 1997, on the eve of the Labour landslide election.

L Fulton, Worker Representation in Europe (Labour Research Department and ETUI, 2013).

The 23% estimated for 2011 by B van Wanrooy et al. in Employment Relations in the Shadow of Recession (cited below), at p 79 is in slight tension with the 16.9% coverage of wage bargaining extracted from the ICTWSS data (see below) by the European Foundation for the Improvement of Living and Working Conditions, Developments in Collectively Agreed Pay 2013 (2014), p 45: http://www.eurofound.europa.eu/sites/default/files/ef_files/docs/eiro/tn1404020s/tn1404020s.pdf.

Board of Trade, Report on Collective Agreements between Employers and Workpeople in the United Kingdom , Cmd 5366, 1910. See R Charles, The Development of Industrial Relations in Britain 1911–1939 (1973).

L Fulton, Worker Representation . For a discussion see K D Ewing and J Hendy, Reconstruction after the Crisis: A Manifesto for Collective Bargaining (Institute of Employment Rights, 2013), at pp 2, 34–39.

This graph represents the estimation of the editors (revised from the graph in their Manifesto for Collective Bargaining , ibid., at p 4) of the percentage of workers who had one or more terms of employment founded on a collective agreement at any level and includes those covered by Wages Councils. The historical records are incomplete, irregular, use different definitions and are in any event uncertain. Estimates are therefore unavoidable. Ours are based on a consideration of the following materials: S Milner, ‘The Coverage of Collective Pay-setting Institutions in Britain, 1895–1990’ (1995) 33 British Journal of Industrial Relations 69; N Millward, A Bryson and J Forth, All Change at Work? British Employment Relations, as Portrayed by the Workplace Industrial Relations Surveys Series (2000); K Brook ‘Trade Union Membership: An Analysis of Data from the Autumn 2001 Labour Force Survey’ (2002) 110(7) Labour Market Trends 343; P Davies and M Freedland, The Evolving Structure of Collective Bargaining in Europe 1990–2004; National Report on the UK (2004); European Commission and University of Florence; H Grainger, Trade Union Membership 2005 (DTI, 2006); B Kersley, C Alpin, J Forth, A Bryson, H Bewley, G Dix and S Oxenbridge, Inside the Workplace: Findings from the 2004 Workplace Employment Relations Survey (2006); B van Wanrooy, H Bewley, A Bryson, J Forth, S Freeth, L Stokes and S Wood, Employment Relations in the Shadow of Recession; Findings from the 2011 Workplace Employment Relations Study (2013); J Visser, Data Base on Institutional Characteristics of Trade Unions, Wage Setting, State Intervention and Social Pacts, 1960–2014 (ICTWSS) (Amsterdam Institute for Advanced Labour Studies, University of Amsterdam, October 2015).

Eurofound, Recent Developments in the Distribution of Wages in Europe (Publications Office of the European Union, Luxembourg, 2015), p 35.

Ibid., p 45. In a global context, the world is revealed to be a place of gross inequality where the 62 richest individuals have the same total wealth as the poorest half of the global population (3.6 billion people). The former's income rose 44% in 5 years from 2010–2015, while during the same period the wealth of the poorest half dropped by 41%: Oxfam, An Economy for the 1%: How Privilege and Power in the Economy Drive Extreme Inequality and How This Can Be Stopped , Oxfam, 18 January 2016. The Credit Suisse 2015 Global Wealth Report found the poorest half of humanity own 1% of global wealth whereas the richest 1% of people own 50.4% of global wealth.

ILO, Global Wage Report 2014/15: Wages and Income Inequality (2015), p 19, citing W Salverda, B Nolan and T Smeeding, ‘Introduction’ in B Nolan and T Smeeding (eds), The Oxford Handbook of Economic Inequality (2009), p 5.

As E McGaughey points out (in relation to the rise and fall of union membership and inequality but the point is equally apposite to the employment relationship more generally): ‘The evidence shows, not merely that the law is a more significant factor among those socio-economic factors: the law determines the relevance of all factors absolutely’. E McGaughey, Do Corporations Increase Inequality? (30 November 2015), http://piketty.pse.ens.fr/files/McGaughey2015.pdf, at p 32; and E McGaughey, ‘All in “It” Together: Worker Wages without Worker Votes’ (2016) 27(1) King's Law Journal 8.

For example, international tax avoidance and evasion revealed in the ‘Panama Papers’, the invasion of Iraq, international rendition of prisoners, unauthorised electronic surveillance and so on.