Introduction

The last year has seen the UK plunged into a cost of living crisis, and an epidemic of “fire and rehire” practices by employers determined to cut workers’ pay and conditions. The most shocking abuse of power came when the P&O ferry company sacked almost 800 workers with no notice and without consultation, and replaced them with untrained agency staff. This is not the kind of “new normal” anyone was hoping to return to as we came out of the Covid pandemic that shut down our lives in March 2022.

Public and private sector workers who kept working throughout the pandemic have seen their pay eroded, with below-inflation pay offers and threats to their terms and conditions. At the time of writing, rail, bus, dock and postal workers were among many groups taking industrial action to defend their rights in industries suffering from long-term lack of investment and below-inflation pay rises. The action and potential industrial action was spreading across every sector of the economy, with even the Royal College of Nursing set to ballot its members for what would be their first ever strike over pay.

There is no doubt that workers’ rights are under attack. The government’s response to the rail dispute was to lift the ban on the use of agency workers to replace striking workers, which was put in place almost 50 years ago to comply with international labour laws. Both the TUC and agency employers denounced the proposal as both unworkable and a threat to safety and said it would prolong any dispute. Despite these objections, the government pressed ahead with its plan, and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 became law on 21 July. A coalition of unions is preparing an application for judicial review to challenge it.

But workers are also fighting back collectively. Trade unions have reported an increase in membership, and Google searches for “join union” reportedly rose by 184% following the start of the rail strike. Unions continue to make some advances through legal action. General union Unite succeeded in the Supreme Court with a ruling that employers cannot undermine the agreed collective bargaining procedure by making offers direct to workers. Meanwhile retail union USDAW successfully resisted a move by supermarket giant Tesco to remove workers’ entitlement to “retained pay” through fire and hire, with an injunction from the High Court, though this was sadly reversed by the Court of Appeal so the union is now pursuing its case to the Supreme Court.

Industrial action is always a last resort; a sign that employers are not listening. But it is also a testimony to the strength of the union since it takes conviction and solidarity to overcome the numerous hurdles put in place by successive governments to make strike laws in the UK among the most restrictive in Western Europe. The majority of the work carried out by trade unions on a daily basis involves negotiating better terms and conditions and representing their members in disciplinary and grievance meetings.

LRD continues to provide unions with information and resources to help reps and members improve pay and conditions, promote equality and resist attempts by employers to worsen terms of employment.

Law at Work, now in its 34th year, is LRD’s annual employment law handbook. It is designed to help trade unionists understand the law and use it to protect and promote workers’ rights. It explains key employment legislation and case law, helping negotiators, reps and members keep up to date with changes to the law.

Unlike most other employment law guides, LRD’s Law at Work examines the law from the perspective of trade unions and workers. It shows where the relevant law can be found and highlights key legal cases that provide examples of the law in action. The LRD’s Case Law at Work series provides case summaries in greater detail and can be read alongside this handbook. LRD’s companion handbook, Health and Safety Law, explains the role of safety reps and gives practical guidance on using health and safety laws to make workplaces safer.

Most trade unions offer their members a legal advice service and any member or rep contemplating taking a legal case should contact their union first. In some unions, tribunal cases will be handled internally at district, regional or even head office level. This handbook does not contain individual legal advice and must not be relied on as such.

We have expanded the index to this 2022 edition of Law at Work to make it easier for you to navigate your way around it. Affiliates of LRD can also access our enquiry service with follow-up questions.

This handbook includes references to employment legislation, which can be found on the government’s website (legislation.gov.uk). It also includes case references in various forms: most give the case reference number used by the tribunal or court; others refer to published law reports, such as IRLR ( Industrial Relations Law Reports) and ICR ( Industrial Cases Reports) which are subscription-based services. Recent cases from tribunals and appeal courts are available online, and the free online resource from the British and Irish Legal Information Institute (bailii.org) includes an invaluable searchable database of cases from the Employment Appeal Tribunal (EAT) and higher level courts, including cases from the Court of Justice of the European Union (CJEU or ECJ).

The “Further information” section at the back of this handbook gives details o