Regulating employment

Right up to my last year as a law student I didn’t really know what I was going to do next. I had been doing my bar course – i.e. I had been preparing myself to become a barrister – but I was not pursuing this with any real enthusiasm. But then I had a conversation with one of my lecturers, and this had a profound effect, persuading me that I wanted to be an academic, and that my chosen field of expertise would in the first instance be labour law. The lecturer concerned was Kader Asmal (a South African in exile) – who later became a Minister in the post-apartheid government. And so I went to Cambridge and did a PhD on freedom of association, that is the right to trade union membership and to participate in trade union activities.

In 1980 I then became Lecturer in Industrial Relations in Trinity College Dublin, and for the next decade I was a labour lawyer in a business school. During that decade a number of global trends and events changed many of the assumptions underpinning labour law – in fact, it ceased to be ‘labour law’ in many universities and became ’employment law’. The assumption common until then – that the law’s role was to protect trade union membership and to allow collective bargaining to regulate employment – was overturned. Instead there began a kind of intellectual and policy struggle between those who believed that the law should set out a detailed and expanding framework of rights for workers in relation to such matters as dismissal, discrimination and health and safety, and those who believed that employment rights were a basis for restrictive practices and anti-competitive conditions. These arguments were often conducted not by lawyers but by economists.

Also at the heart of this debate was the question of whether the role of law was to protect producers or consumers. This was particularly an issue in the event of industrial action that affected consumers, above all in public services.

This debate has never been successfully concluded. We have no social consensus around it. If employment regulation provides job security, is that still in the public or national interest if the impact is to raise labour costs to where they are not internationally competitive? But if the price of competitiveness is insecurity and low wages, is that justifiable? Or if new work practices are needed to keep a company viable, is it the law’s job to secure that viability, or to protect the interests of employees who find the new practices unacceptable? We have no answer to these questions.

As we look for new models of economic conduct and aim for a recovery from recession, it may become increasingly important that we do have a much clearer view as to how, how much, and for what purpose employment should be regulated by law. That task has barely begun, but is urgently needed. Once we have an answer, it may help us also to come to a better understanding of how employment law should be taught in our universities.

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Tags: employment, employment law, employment rights, labour law

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