Employment Law

The article discusses important features related to the concept of flexicurity, work safety and health, industrial actions and trade unions, and the concept of positive duties in promoting equality.

Employment Law
Employment Law
[Author Name(s), First M. Last, Omit Titles and Degrees]
[Institutional Affiliation(s)]
Author Note

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Contents
Introduction..........................................................................................................................1
PART I.................................................................................................................................1
The Concept of flexicurity...............................................................................................1
Flexicurity in Denmark................................................................................................3
Denmark Measures......................................................................................................5
PART II................................................................................................................................7
Changes in the Employer's Responsibility on Health and Safety of Employees.............7
Stress, Depressive Disorders and Harassment in Labour Protection...............................9
PART III.............................................................................................................................12
Employers’ Solution to Employees’ industrial action and strike...................................12
Legal implications: Trade Union and Labor Relations (Consolidation) Act 1992
(TULRCA).................................................................................................................................14
Different Types of Dispute.............................................................................................15
The Use of Injunctions...................................................................................................15
Dismissal and Re-engagement.......................................................................................16
PART IV.............................................................................................................................16
International Transport Workers' Federation (ITWF) v Viking Line ABP (C-438/05)......16
Conflicts Resolution: Economic fundamental freedoms and trade unions' rights in
collective bargaining......................................................................................................................18

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PART VI.............................................................................................................................20
Conclusion.........................................................................................................................23
Bibliography......................................................................................................................25

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Introduction
The increasing globalization occupied with demands for sustainable management,
political accountability, and institutional governance has led to a need for adjustment of
regulatory frameworks for employment and labor. Against this contextual, governments have
come up with regulations and terms all with the intention of shaping the employment
relationships. An important aspect is the enactment of international principles that that now
govern employment relations both for people working within a country and the workers posted to
a foreign country. The article intends to discuss important features related to the concept of
flexicurity, work safety and health, industrial actions and trade unions, and the concept of
positive duties in promoting equality.
PART I
The Concept of flexicurity
The idea of flexicurity came as an approach of European Employment Strategy (EES).
The model later received its highest recognition when the European Commission (EC) and other
member states turned to it as an amalgamation between political support for the regulations of
socio-economic and those arguing for sustain.1 The EC defined flexicurity as an integrated
approach for enhancing flexibility in the labor market while at the same time maintaining job
security.2 Flexicurity came as the approach for tackling the structural changes brought by new
technologies and the slow economic growth. These were critical issues during the time for the
financial crisis which destabilized jobs causing industries to rush for flexibility as an attempt to
1 Mikkel Mailand, ‘The Common European Flexicurity Principles: How a Fragile Consensus Was
Reached’ (2010) 16 European Journal of Industrial Relations 241.
2 Commission of the European Communities (EC), ‘Communication from The Commission to The
European Parliament, The Council, The European Economic and Social Committee and The
Committee of The Regions’ (2007) <https://eur-lex.europa.eu/legal-content/EN/ALL/?
uri=CELEX:52007DC0359>.

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reduce costs of labor. On the other hand, flexicurity was more of a transition of the employee’s
course of life starting from school to employment, from one job to another, during
unemployment, and from during employment to the retirement.
Flexicurity is about employees’ progress into better jobs, and chances for developing their
talents. Flexibility as one element of flexicurity looks at the ability of the organization to quickly
identify their product requirements and skills, and facilitation of the employees’ combination of
both private life and work responsibilities. Security as the second element looks not only at the
ability of the employees to maintain a job, but also their growth which requires equipping them
with skills that enhance their progress through the career life, and their ability to secure future
employment. In 2006, the Commission explained that flexicurity comprised four “components.”
These components were flexibility and reliability in contractual arrangements, the efficacy, and
enforcement of policies for labor markets, all-inclusive lifelong learning plans, and modernized
systems for social security.
Flexicurity in Denmark
The Danish model has been regarded as the most successful and well-established in the
management of flexicurity agreements within the Danish labor markets.3 The Danish
understanding of flexicurity composes of three elements. These elements are; (i) protection of
low employment through legislation; (ii) generosity in offering unemployment benefits; (iii)
active policies for the labor market.4 The unique combination of these elements is the one called
the “golden triangle’’.5
3 Konstantinos Kougias, ‘‘Real’Flexicurity Worlds in Action: Evidence from Denmark and Greece’ <
http://eprints.lse.ac.uk/69576/> accessed 18 April 2019.
4 Sonja Bekker and Mikkel Mailand, ‘The European Flexicurity Concept and the Dutch and Danish
Flexicurity Models: How Have They Managed the Great Recession?’ (2019) 53 Social Policy &
Administration 142.
5 ibid.

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Under the first principle of protection of low employment through legislation, work
dismissals are subject to regulation which are a combination of principles from different
legislation and collective agreements.6 Altogether, these regulations bring certainty among
employees, employers, insurance funds, trade unions, and Jobcentres.7 While Danish employers
face strict rules against workers dismissal when compared to other countries, they also enjoy the
benefit of paying less since the statutory compensation payments are lower in Danish than other
countries.8
The second flexicurity principle allows Denmark to support the unemployed. The Danish
flexicurity model has a system that groups unemployed persons into insured and non-insured.
The insured receive unemployment benefits from insurance packages. However, this is subject to
their compliance with the rules. On the other hand, the non-insured persons are granted access to
social assistance. But like the insured, the must rule such as the testing conditions. In addition,
non-negligible unemployed are allowed to receive disability benefits.9 The elderly also receive
early retirement benefits.10The third Denmark model is the strong activation approach which
consists of rights and obligations for the people without jobs. The strategy requires the
unemployed to actively seek work, and the rules require them to participate in the compulsory
full-time activation programs. The data on the 2011 survey showed that Denmark spent 3.7% of
6 Ralf Rogowski and Thomas Kruppe, Labour Market Efficiency in the European Union Employment
Protection and Fixed-Term Contracts (Routledge 2013) <https://ezproxy.aub.edu.lb/login?
url=https://www.taylorfrancis.com/books/9781134728466> accessed 18 April 2019.
7 ibid.
8 Torben M Andersen, ‘The Danish Labor Market, 2000–2016: Despite Recession-Induced Job Losses,
High Turnover Prevented a Steep Increase in Long-Term and Youth Unemployment’ [2017] IZA
World of Labor < https://wol.iza.org/articles/the-danish-labor-market/long>.
9 OECD, Mental Health and Work: Denmark (OECD 2013) <
http://www.oecd.org/employment/mental-health-and-work-denmark-9789264188631-en.htm>
accessed 15 April 2019.
10 Organisation for Economic Co-operation and Development (ed), Ageing and Employment Policies:
Denmark 2015: Working Better with Age (OECD Publishing 2015).

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its GDP on labor market policies which was the highest level listed when compared with other
EU countries.11
While Danish model also faced problems faced by other countries during the 2008 crisis,
Ibsen stated that Danish approach was able to react fast to the changing nature of economic,
political and social circumstances thus making it a fundamental foundation of flexicurity
arrangement.12 In support, Madsen also stated that the way Danish flexicurity survived the crisis
proved that it was able to arrest financial storms that may come to the country.13 Bredgaard and
Madsen state that flexicurity affected organizations negatively especially the reforms on the
unemployment insurance system.14 However, the authors still diverted that these institutions were
able to adapt to the challenges and were able to maintain the essential balance between being
flexible in hiring and maintaining employment security.15
Nevertheless, the Danish approach to flexicurity attracted considerable international
attention even before the economic crisis. The model allowed employers to easily regulate their
workforce to meet the structural change and cyclical variations demands. At the same time, the
model provided an assurance of solid safety against massive poverty or income losses. Even
during the hard times of the 2008 economic crises, the high transitional to unemployment
retained the unemployment rate in Denmark’s labor market above the average set byOrganisation
for Economic Co-operation and Development (OECD).16 In 2013, the Danish labor market was
11 Eurostat Statistics, ‘Archive:Labour Market Policy Expenditure - Statistics Explained’ (2018)
<https://ec.europa.eu/eurostat/statistics-explained/index.php/Archive:Labour_market_policy_expendit
ure> accessed 25 April 2019.
12 Christian Lyhne Ibsen, ‘Strained Compromises? Danish Flexicurity during Crisis’ (2011) 1 Nordic
journal of working life studies 45.
13 Per Kongshøj Madsen, ‘“Shelter from the Storm?” - Danish Flexicurity and the Crisis’ (2013) 2 IZA
Journal of European Labor Studies 6.
14 Thomas Bredgaard and Per Kongshøj Madsen, ‘Farewell Flexicurity? Danish Flexicurity and the
Crisis’ (2018) 24 Transfer: European Review of Labour and Research 375.
15 ibid.
16 Tor Eriksson, ‘Flexicurity and the Economic Crisis 2008-2009’ <
https://www.oecd-ilibrary.org/social-issues-migration-health/flexicurity-and-the-economic-crisis-2008-

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able to recover to 27% an implication that their flexicurity model was still on a maintainable
track.17
Denmark Measures
There are different key flexicurity measures that Denmark introduced which led to its
success. Among the measures were having municipalities as the main bodies for enforcing
policies for labor markets.18 In addition, the municipal Jobcentres were charged with the role of
offering the overall services for employment that were needed by the jobseekers. For instance,
the local job centers under the management of the municipality had the role of providing
financing help along with guidance in securing jobseekers’ insurance.19
Also, Denmark’s national and regional authorities for the labor market came up with
objectives which they used in monitoring the efficacy of jobcentres. For example, the Agency for
Labour Market and Recruitment (STAR), works under the supervision of the Ministry of
Employment. The STAR sets uniformity and the requirements regarding the accessibility of
services, rate of interactions between jobcentres and the citizens, and occurrence of interviews at
the Jobcentres. In addition, the trade unions have an impact in negotiating for the protection of
employment rights through collective bargaining.20 There are also the unemployment insurance
packages that are aimed at delivering benefits in cases of unemployment.
2009_5k8x7gw8btq6-en>.
17 Torben M Andersen, ‘A Flexicurity Labour Market in the Great Recession: The Case of Denmark’
(2012) 160 De Economist 117.
18 ‘Building Flexibility and Accountability Into Local Employment Services: Synthesis of OECD
Studies in Belgium, Canada, Denmark and the Netherlands’ (2011) OECD Local Economic and
Employment Development (LEED) Working Papers 2011/10 < https://www.oecd-ilibrary.org/industry-
and-services/building-flexibility-and-accountability-into-local-employment-services-synthesis-of-
oecd-studies-in-belgium-canada-denmark-and-the-netherlands_5kg3mkv3tr21-en > accessed 15 April
2019.
19 OECD (n 9).
20 S Hayter and V Stoevska, ‘Trade Union Density and Collective Bargaining Coverage. International
Statistical Inquiry 2008-9’ [2010] Technical Brief. Industrial and Employment Relations Department
(DIALOGUE), ILO.

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There are a few common principles that might be developed in order to guide further
reforms. Firstly, the governments should have a fiscal space that can help in accommodating the
risen expenditure on the programmes for labor markets. Learning from the 2008 crisis, having a
fiscal space place can absorb the negative effects of the financial crisis when they come.
Secondly, there is a need to adaptability in policies for labor markets. Like fiscal space,
adaptability can help policymakers to switch quickly to designing new frameworks for handling
the financial crisis. Thirdly, there is a need to recognize the factors of inequalities which
sometimes cause doubts in the universal implementation of flexicurity system.
PART II
Changes in the Employer's Responsibility on Health and Safety of Employees
Occupation Safety and Health (OSH) has been recognized since its conception by the
Joint International Labour Organization (JIO) and World Health Organization Committee
(WHOC) in 1950.21 OSH aims at promoting and maintaining the highest standard of workers’
mental, physical, psychological and social well-being in all industries. The scope of OSH
includes prevention of dangers caused by working conditions, protection from employment risks
that cause adversarial health effects, and a healthy work environment that considers
psychological and physiological capabilities of the workers.22
The OSH regulation is an old concept dating from the time of King Henry between 1068-
1135 when masters were made responsible and carried liabilities for injuries or loss suffered by
their servants due to masters’ negligence.23 The basis of this was that since most of the work
involved execution of small units of work, the master who was the owner of the work had more
21 Joint ILO/WHO Committee on Occupational Health, Joint ILO/WHO Committee on Occupational
Health: Second Report [of a Meeting Held in Geneva from 6 to 12 October 1952 (World Health
Organization 1953).
22 ibid.
23 Stavroula Leka and others, ‘Future Challenges of Occupational Safety and Health Policy-Making in
the UK’ (2016) 14 Policy and Practice in Health and Safety 65.

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knowledge of the work, This made it reasonable to assume that he was he aware of all the risks
involved in the workers’ nature of engagement. However, this happened because the industrial
revolution had not materialized and most of the work executed was on a small scale. In the 19th
century, changes that came with the industrial revolution altered the workforce with the
emergence of mills and factories bringing pollutions and risks to the working conditions.24
People also enlarged their businesses from the small-sized family businesses to large ones like
factories. Mechanization, the complexity of work, and increased industrial size went past
employers’ knowledge thus outpacing the laws and self-regulation.25 The increased diminished
employers’ knowledge brought by industrialization came with industrial accidents, pollution, and
work-related injustices.26 The law in this time was not able to cope up with the increased
industries thus creating the necessity to have a better system for the regulation of employment
relations.
Initially, the laws that dealt with the matters of health and safety of the works were based
on a free market theory which was challenged by the need to have better regulations. The tabling
of the requirement for better work conditions brought an issue of OSH to the courts and
parliament.27 The parliament intervention came with legislation and implementation of standards
which were supported by multiple views from different stakeholders. These laws and regulations
were the ones which came to be classified as hard and soft laws.28
The current OSH regulation refers to both legislation and policies all with the aim to
regulate work health and safety standards. In overall, there are both soft and hard laws. The hard
24 Henry Rothstein and others, ‘Varieties of Risk Regulation in Europe: Coordination, Complementarity
and Occupational Safety in Capitalist Welfare States’ Socio-Economic Review
<https://academic.oup.com/ser/advance-article/doi/10.1093/ser/mwx029/4107902> accessed 16 April
2019.
25 ibid.
26 Matthew Ross Lippman, Law and Society (SAGE Publications 2015) 35.
27 Lippman (n 26).
28 ibid.

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laws are policies that rely on the state’s power and authority in the regulation workforce.29 The
hard laws are based on the provisions of statutes. On the other hand, soft laws rely on policies
made by nongovernmental actors and other volunteers.30
Stress, Depressive Disorders and Harassment in Labour Protection
Studies focusing on occupational health have found that workers working in challenging
job positions with unsupportive co-workers have a higher risk of poor health. However, most of
the studies have shown that these demands are not merely work related, but some of them are
associated with unfair treatment at work which lead to employees’ stress, depressive disorders or
work injuries.31The World Health Organization (WHO) defines workplace stress as a
psychological response towards work pressures and demands which are not a match to their
capabilities.32 Whereas workplace stigma, attitudes, and stress, and mental disorders are
rampant, the area still remains neglected in different countries and industries. There is evidence
that more than 60% of the employees suffer depression and stress due to work injustices such as
discrimination.33 Discrimination at the workplace is some of the major causes of stress and
depression at the workplace which labor protection laws are dealing with. In addition, there are
also other factors which are the outcome of stress. These are disorders such as diabetes and
hypertension which result from stress.
29 ‘The Future of Work in New Zealand: Education and Training – Lessons from Denmark’.
30 Leka and others (n 23).
31 Arzu Sert and others, ‘The Effects of Organizational Justice and Ethical Climate on Perceived Work
Related Stress’ (2014) 150 Procedia - Social and Behavioral Sciences 1187; Jordan M Robbins,
Michael T Ford and Lois E Tetrick, ‘Perceived Unfairness and Employee Health: A Meta-Analytic
Integration’ (2012) 97 The Journal of Applied Psychology 235.
32 World Health Organization, ‘WHO | Stress at the Workplace’ (WHO, 2017)
<https://www.who.int/occupational_health/topics/stressatwp/en/> accessed 16 April 2019.
33 EPM Brouwers and others, ‘Discrimination in the Workplace, Reported by People with Major
Depressive Disorder: A Cross-Sectional Study in 35 Countries’ (2016) 6 BMJ Open
<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4769412/> accessed 16 April 2019.

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Further, bullying and harassment in the modern workplace are other issues facing labor
protection.34 Sexual harassment is one of the most common types of harassment in the
workplace. Despite being declared illegal and highly condemned, sexual harassment still remains
persistent and mainly underreported.35 Besides, both legislation and industrial policies have never
been able to eliminate it. Workplace bullying involves misconducts that are meant to offend
some workers. Some studies have found that workplace bullies happen more on women than
men and they increase in women holding managerial positions.36 The MeToo report states that
workplace bullying seems to have emerged overnight but it is an issue which has been there for
decades.37 Like any other country, workplace bullying in the United States has potential
consequences such as litigation costs, and medical claims in addition to the loss of job for those
caught bullying their fellow employees or workers.38 Again, even if there are laws in place for
dealing with such misconducts, most of the cases go unreported.
In the UK, the main law that deals with matters of OSH are the Health and Safety at
Work (HSW) Act 1974. The act creates an obligation for all employers to ensure that they
provide reasonable health and safe work conditions for their employees. In other words,
employers are only expected to deal with what is possible and they do not have an obligation to
deal with technically impossible and excessively problematic situations. However, as the nature
34 Christine Lindquist and Tasseli McKay, ‘Sexual Harassment Experiences and Consequences for
Women Faculty in Science, Engineering, and Medicine’ (RTI Press 2018) <https://www.rti.org/rti-
press-publication/sexual-harassment-experiences-and-consequences-women-faculty-science> accessed
17 April 2019.
35 Vanderbilt University, USA and Joni Hersch, ‘Sexual Harassment in the Workplace’ [2015] IZA
World of Labor <http://wol.iza.org/articles/sexual-harassment-in-workplace> accessed 17 April 2019.
36 J Antonio Ariza-Montes and others, ‘Workplace Bullying among Managers: A Multifactorial
Perspective and Understanding’ (2014) 11 International Journal of Environmental Research and Public
Health 2657.
37 Zacharek Stephanie, Eliana Dockterman and HaleyS Edwards, ‘TIME Person of the Year 2017: The
Silence Breakers’ (Time, 2017) <http://time.com/time-person-of-the-year-2017-silence-breakers/>
accessed 17 April 2019.
38 Rickey E Richardson, Reggie Hall and Sue Joiner, ‘Workplace Bullying in the United States: An
Analysis of State Court Cases’ (2016) 3 Cogent Business & Management 1256594.

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of common law, the court will take an objective approach in finding whether the employer acted
negligently.
A breach of the HSW Act attracts huge fines. From the government’s perspectives, the
courts should always impose high fines on matters where companies put to risk the health and
safety of the workers as a warning to other companies that would practice work injustice.
Recently, the UK government has even come up with a complex system of awarding penalties by
looking at the company’s turnover which now risks even small-sized companies to huge
penalties such as the case of HSE V Watling Tyre Service Ltd.39 In addition, a review of the past
prosecutions regarding OSH showed that offenses from the breaches of HSW Act in the
construction industry reached 46% of all the prosecutions done by Health and Safety Executive
(HSE) from 2010 to 2015.40 While some of the legal practitioners criticize the move to award
huge penalties, some other scholars have taken it positively stating that imposition of fines even
to small companies would deter them from acting unsafely.41
PART III
Employers’ Solution to Employees’ industrial action and strike
Employers should understand that industrial actions are legal rights granted under
European Convention on Human Rights.42 For instance, in 2009, the European Court of Human
Rights (ECtHR) Enerji Yapi-Yol Sen v Turkey ruled that workers have the right to strike and such
right should not limited be without any reasonable justification.43 On the other hand, the UK
39 [2016] 1753 EWCA Crim : A penalty of one million pounds (£1M)
40 Kizzy Augustin, ‘The 2016 Health and Safety Sentencing Guidelines: How Have Things Changed for
Companies?’ (SHP - Health and Safety News, Legislation, PPE, CPD and Resources, 11 April 2016)
<https://www.shponline.co.uk/legislation-and-guidance/the-2016-health-and-safety-sentencing-
guidelines-how-have-things-changed-for-companies/> accessed 19 April 2019.
41 Chris Warburton, ‘Step by Step to Record Fines’ (Health and Safety at Work, 2016)
<https://www.healthandsafetyatwork.com/feature/step-by-step-to-record-fines> accessed 19 April
2019.
42 ‘European Convention on Human Rights’ Art 10; Art 11.
43 Application No 68959/01 01.

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government has some provisions for the regulation of industrial actions in the country under the
idea of statutory immunities.44
An employer who is faced with a threat for industrial actions or the real strike has various
options for consideration. For instance, alternative dispute resolution (ADR) is perhaps one the
most immediate consideration that employers can use to either calm an ongoing strike or a pre-
strike threat. In ADR, negotiations can be used to reach an amicable settlement by opening
communications between the administration and the striking workers. The advantage of peaceful
negotiations is that both parties remain at peace, and maintain trust between themselves.45
Where negotiations do not work in preventing a strike, a remedy of an injunction can be
another option. In most cases, the injunction applies to a threat to an unlawful industrial action
where the employer goes to a Court and asks the court to grant an order for halting the strike.
Whereas the court would not compel the employees to perform the part of their contracts, the
court would review the circumstances and the legal position of the strike to decide whether they
can provide a remedy or not. For unjustified strikes, the employer can choose to withhold the
payment of the striking workers. When an industrial action is unjustifiable, the employee would
have breached his or her employment agreement. While the organization’s performance can be at
risk during industrial action, employers should be aware that regulation 7 in Agency Regulation
forbids businesses from temporarily replacing their striking employees with agency workers in
an attempt to cover for the lost work.46
Every employer should have a risk management plan in place. Once the organization
becomes aware of a potential strike, they should engage their emergency actions for the
44 Claire-Michelle Smyth and Richard Lang, The Future of Human Rights in the UK (2017)
<http://search.ebscohost.com/login.aspx?
direct=true&scope=site&db=nlebk&db=nlabk&AN=1627495> accessed 20 April 2019.
45 Davide Carneiro, Paulo Novais and José Neves, Conflict Resolution and Its Context: From the
Analysis of Behavioural Patterns to Efficient Decision-Making (Springer 2014).
46 Guidance On The Conduct Of Employment Agencies And Employment Businesses Regulations 2003.

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anticipation of injuries, loss of life, environmental and asset damage.47Also, businesses should
have a good relationship with law enforcement to ensure that they can easily receive support in
circumstances where the striking workers engage in criminal offenses such as destruction of
property. Also, the employers must be prepared for a situation when they would be unable to
prevent or stop the strike.
Another possible option that employers can consider is dismissals. However, the
employer should first analyze the legal position of the strike before dismissing the employers.
Where the employees took an unprotected strike, those employees would qualify for dismissal.48
The basic requirements for a strike in the UK are; 1) the dispute must be work-related; 2) It must
be between the employer and workers; 3) must come after holding a ballot; 4) The returned
balloted papers must be the will of the majority in favor of the strike ; 4) there must have been
independent scrutinization of the ballots; 5) there should have been a notice for the strike.49
Legal implications: Trade Union and Labor Relations (Consolidation) Act 1992 (TULRCA)
The UK statutory provisions permit industrial action by offering immunities from tort
liabilities provided that the actions were lawful.50 Where there are a ‘statutory immunities,’ all
workers participating in such industrial actions are shielded from liabilities and dismissal. A trade
union seeking these benefits must comply with both procedural and substantive requirements.
The procedural requirements comprise of the balloting requirement discussed above, and the
union must issue the striking workers with notice and specific information relating both to the
industrial action and the ballot.51 Where any worker or workers intend to use picketing, they have
47 Kurt J Engemann and Douglas M Henderson, Business Continuity and Risk Management: Essentials
of Organizational Resilience (Rothstein Publishing 2014) 103.
48 Trade Union and Labour Relations (Consolidation) Act 1992 s 238A.
49 ‘In What Circumstances Are We Permitted to Go on Strike? | WorkSmart: The Career Coach That
Works for Everyone’ <https://worksmart.org.uk/work-rights/trouble-work/industrial-action/what-
circumstances-are-we-permitted-go-strike> accessed 21 April 2019.
50 TULRCA s 238.
51 ibid 207.

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to address that directly to TULRCA so that their action would be termed legal.52 However, In
Kuznetsov v Russia the Court held that TULRCA code of practice limits picketing to six
members per single picket.53
The employers’ ability to win in a claim of industrial action depends on three factors. The
employer must convince the court that the trade union or the employees intend to undertake an
unprotected industrial action. The employer needs also to convince the court that the furtherance
of the strike would cause unrecoverable damages requesting a balance of convenience.54 Thirdly,
in NWL v Woods, the House of Lords held that employer must convince the court that stopping
the industrial action would be necessary for the protection of public interest.55
Different Types of Dispute
There are different types of disputes. Among them, the main one is the individual dispute
which is mainly between a person and the other such as a worker and the employer. The second
one is the collective dispute. This one occurs where there is a disagreement between a group such
as workers and another person or group of persons such as employers. A collective disagreement
can arise over a collective workers’ agreement. On the other hand, a right dispute involving one
employee or employees and their employer over a violation of an existing privilege provided in a
collective agreement or law. An interest dispute involves employees and their employer over
matters of a future right or an obligation provided in the employment contract. In most case,
interest disputes arise when there is inconclusive bargaining.
52 ibid 220.
53 [2008] 1170 ECHR.
54 Nicola Countouris and Mark Freedland, ‘Injunctions , and the Corrosion of the Right to Strike in the
UK’ (2010) 1 European Labour Law Journal 489.
55 [1979] 867 (HL) ICR.

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The Use of Injunctions
Employees or unions that fail to comply with the statutory requirements risk losing the
“immunity” and the legal protection from dismissal and injunction. In such circumstances, any
claim sort by the employer in court for an injunction against industrial action will succeed. The
grounds for an injunction against an unlawful industrial action requires 1) Employer to be
affected by the industrial action; 2) If not the employer, a third party may file an injunction if
he/she would be affected directly; 3) A union member can also apply if he/she was compelled to
participate; 4) A third party who cane affected due to lack of a service or goods can also file an
injunction.
Dismissal and Re-engagement
Dismissals are only applicable to employees who participate in unlawful industrial action.
The employer may be sued of unlawful or unfair dismissal he/she dismisses an employee who
participated in a protected industrial action.56 Wrongful dismissal is based on the claims for a
breach of employment contract while unfair dismissal is based on the statutory claim. Also,
dismissals for unlawful industrial actions should not be discriminative. Where there is an
unlawful dismissal, the employee may bring a claim to the employment tribunal which may
uphold the claim of unfair dismissal.57 Upon the facts of the case, the tribunal may give an order
for the employee re-engagement or reinstatement. An order of reinstatement would require the
employer to re-employ the employee and treat the situation as though the dismissal had not
happened. On the other hand, a re-engagement order demands the employer provide the
employee with work engagement comparable to the previous job or another suitable
employment.
56 GOV.UK, ‘Dismissal: Your Rights’ (GOV.UK, 2019) <https://www.gov.uk/dismissal/unfair-and-
constructive-dismissal> accessed 25 April 2019.
57 ibid.

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PART IV
International Transport Workers' Federation (ITWF) v Viking Line ABP (C-438/05)
The case of International Transport Workers Federation v Viking Line ABP is one of the
important cases in the European Union (EU) law.58 The ruling of this case clarified that workers
have the right to strike. Nevertheless, the court stated that this right can have limitations where
the strike has the possibilities of infringing into business rights.
Viking Line ABP was a company incorporated under the law of Finland. The company
plied its ferry business between Finland and Estonia. It decided to re-register its ferry in Estonia
as an attempt to benefit from Estonian’s low cost of labor. The decision was against the
International Transport Workers' Federation (ITF) policy of re-flagging. Therefore, the ITF asked
its member, the Finish Seamen Union (FSU) to boycott work. Viking then brought an action
against in England seeking an injunction against ITF and FSU act of boycott. Viking based its
claim on the violation of its right of establishment.
In Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet, Laval was a company
incorporated under Latvian laws.59 In May 2004, the company posted its employees to Sweden to
work on sites under the management of a Swedish company. The Sweden trade union found that
Laval was paying its worker's low wages, and asked Laval to sign the collective agreement
which would have provided the workers with the considerable pay and favorable work
conditions. Laval refused to sign, and the Sweden trade union blocked the entrance to the site.
Laval brought an action against the trade union.
Firstly, the EU laws guaranteed international businesses the freedoms of establishment in
order to provide their services as contained in the Treaty on the Functioning of the European
58 [2007] C-438/05
59 [2007] C-341/05

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Union (TFU).60The European Court of Justice (ECJ) interpreted the articles holding that the
freedoms provided under TFU had horizontal direct effects against the trade unions and their
members.61The ECJ explained that industrial actions intended to cause the business to comply
with the standards of one member states while abandoning the standards of the other member
states. As a result, the action would cause the business to change its initial plan of establishing its
trade in that foreign state. For the action be lawful, the unions need to prove that their industrial
actions were justified, non-discriminatory, and proportionate.
Viking, the ECJ held that the ITF and FSU right to protect its workers was a valid interest
which justified, but it could have been more justified if Viking’s decision had threatened their
employment. Under the principles of proportionate, the ECJ advised that collective action was
not proportionate because the unions had not exhausted other means which were available to
them. In Laval, the ECJ found that the Swedish collective agreement that imposed standard
wages and working conditions was not contradictory to the Posted Work Directives (PWD). As
the aim of the PWD was to coordinate the employment standards of member states, it then
provided a standard rule which offered minimum protection of the rights of the posted workers.
Therefore, the Swedish collective agreement contradicted the PWD, and could the reasons to
impose it on Laval could not be justified.62
Conflicts Resolution: Economic fundamental freedoms and trade unions' rights in
collective bargaining.
In respect of the conflict between economic fundamental freedoms (EFF) trade unions’
rights (TUR), the issue which requires a stable resolution is whether the international law should
consider collective labor rights as falling within the provisions of the free movement in the TFU.
60 Consolidated Version of the Treaty on the Functioning of the EU 120161 OJ C59/47. art 49-56
61 Laval un Partneri Ltd (n 59) l 98; Viking Line ABP (n 58).
62 Laval un Partneri Ltd (n 59) 106–111.

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Related to this subject, is whether Courts should involve themselves in the course of balancing
the inconsistency between EFF. A reaction to these questions can be predicted from the way ECJ
addressed Viking and Laval cases.63
As explained in Laval and Viking, the two cases demonstrated competition between
economic freedom and social rights, with the law upholding the former while the latter
underwent the proportionality test.64 The ruling of Laval placed the Directive as an element for
reconciling the freedom of collective action and economic freedoms. As per the interpretations of
the ECJ seemed to focus on the internal objectives of the Directives, the latter case of Dr Ruffert
v Land Niedersachsen gave force to a collective agreement requiring the observance of
applicable principles agreed under the collective agreement.65 Therefore, even if the PWD
requires the member states to ensure compliance with the nucleus of minimum employment
conditions, the same would not exonerate them from providing their workers with the standard
employment conditions.
While the judgments in Viking and Laval set the rationale for resolving a conflict
between EFF and TUR by applying free movement principles to collective labor rights, the court
went further to explain the principles’ direct horizontal effect. When applying the principles of
direct horizontal effect, the Court advises that the provisions of the contract are between
individuals, thus they should not become barriers to the economic freedoms which have been
agreed internationally. Another principle that the court emphasized was the application of
proportionality when intending to limit economic freedoms. In Eugen Schmidberger,
Internationale Transporte und Planzüge v Austria, the ECJ allowed more room for the member
states to use their discretion when limiting fundamental rights, and trade unions were allowed a
63 Laval un Partneri Ltd (n 59); Viking Line ABP (n 58).
64 ibid
65 Case C-346/06; [2008] IRLR 467.

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very limited margin.66 In Viking and Laval, the ECJ emphasized on the exhaustion of all other
alternatives by the trade unions before turning to industrial action for limiting economic freedom.
As Barnard explains, the law made it clear that the act of TUR in calling a strike to protect its
interests cannot be a sufficient justification for restricting free movement unless if such the strike
is meant to protect wider genuine aim.67 A great difference between Schmidberger and that of
Viking and Laval is identifiable in the details. In Eugen Schmidberger case, the union blocked
the road thus restricting the free movement of goods. However, the proportionate test of the ECJ
found it adequate because these were citizens manifesting their public opinions.68 Besides, the
blockade was something that came after measures of limiting the implications had been taken.
As it stands, a restriction of the EFF by TUR would require a wider legitimate aim, and be the
last resort after exhausting all other alternatives.
PART VI
The UK Anti-Discrimination regulations have obligatory powers in ensuring the
imposition of positive duties to both the public and private sectors. Positive duties require the
duty-bearer to actively execute the required action. Positive duties differ from their counterpart
negative duties in that the latter prohibits an action. The concept of right-established positive
duties is based on the idea that whenever there is a right, there must be someone to provide it.
O'Neill emphasized the positive duties to rights by stating that rights bust have a determinate
duty-holder.69 Similarly, since there is a universal right against harm, everyone has an obligation
not to harm others.
66 [2003] C-112/00
67 Catherine Barnard, ‘EU ‘Social’Policy: From Employment Law to Labour Market Reform’ (2011) 2
The evolution of EU Law 641.
68 Schmidberger (n 65).
69 Onora O’Neill, ‘Rights, Obligations, Priorities’ (2010) 23 Studies in Christian Ethics 163.

Employment Law 21
To get a better understanding of where and why there should be positive duties to
promote equality, there a need to briefly analyze the concept of human rights. This concept is
deep-rooted in the fact that human beings are autonomous and naturally endowed with
inalienable fundamental rights. The rights exist naturally that they cannot be created nor
destroyed. The nature of their existence allows them to be divided into positive rights and
negative rights. The negative rights prevent others from interfering with what a person is doing
(liberty). For this to happen, the government and law enforcement must be there, to do a positive
action of protecting that right. For example, for there to be a right to life, police must protect
people against crime (positive duty). On the other hand, positive right requires others to do
something to provide someone with that right (welfare). Therefore, negative rights are liberty
rights which require positive action from the government for their peaceful enjoyment. Positive
rights require others to do a positive act the provide someone with welfare such as health,
education, and equality.
As can be seen, for there to be liberty rights, the government must protect the right to life,
freedom of speech, freedom of expression, e.t.c. Similarly, for there to be welfare in the society,
the state must intervene to impose duties to education officials to provide education, and health
workers to provide healthcare. Similarly, a right to equality would need the government to
allocate a positive duty to some people so that others can enjoy that right. Secondly, welfare
rights need substantial resources for their protection. As there must be someone with
accountability for these rights, the state must impose a positive duty to that person as the actor.
The enforcement of the equality duty in the UK started in 2011. The equality duty was
informed by the Equality Act 2010, and it replaced the equality duties to a disability, gender,
race, and religion. Before 2011, these duties existed independent of the other starting with race

Employment Law 22
equality duty which came to force in 2001. Before these duties were created, the state relied on
the equality legislation but this was only to provide a remedy or to rectify issues of
discrimination when they have occurred. When race equality duty came into force, the onus
shifted from being an individual obligation to an organization with an emphasis on public
authorities.
There are various benefits of the approach to positive duty. While looking at the model of
positive duties, Fredman emphasizes that focusing on enforcing equality as a duty is easier than
focusing on eliminating discrimination.70 In this model, Fredman finds that one would not need
to identify prejudice. Instead, one would only need to look at the underrepresentation or
instances of structural discrimination.71 Once such patterns are identified, it is then easier to find
the duty bearer who has relaxed in his/her responsibilities in enforcing equality.72 This more of
finding the source that focusing inequality instead of focusing on its consequences.
Also, duty is something prospective which once charged to a particular person, that
person has the ability to adapt to it and make it part of his/her life. Therefore, once people are
charged with the duty to promote equality, they have the ability to fashion this duty to fit it into
their lives. Even though Fredman thinks fashioning a duty is a continuous process, he also states
its significance in that the duty-bearers are able to work out possible responses, monitor the
efficacy of strategies while modifying the same strategies to fit the purpose.73
In addition, since positive duty would focus on prevention, it would be easier to
implement recommendations for equality since major requirements are changes of the existing
policies for discriminatory to focus on prevention and compliance with human right standards
70 Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 Industrial Law Journal 145.
71 ibid.
72 ibid.
73 ibid.

Employment Law 23
and equality legislation. Furthermore, while looking at the previous model of eliminating
discrimination, that approach was more individualistic. It relied on people’s inclination and
capacity to take action. Such an approach is inadequate in addressing discrimination since people
are left to use their own discretions.74
In regard to positive duties on public sectors, the approach ensures that the government is
getting value for money in its public expenditure. For instance, where attention is paid to the
performance of the employees in ensuring equality, a study in 130 companies in Ireland showed
that there was increased productivity and innovations, reduction of the stuff absenteeism and
turnover, improved organizational commitment, and enhanced service delivery.75
Conclusion
This paper intended to discuss the scope of employment law in the UK and the European
Union in general. To fulfill this objective, the paper examined the concept of flexicurity and
resolves two contrasting issues of labor flexibility and job Security. For an in-depth illustration,
the paper reviewed the application of flexicurity in Denmark and the measures that the Danish
Government applies. Another subject that this paper analyzed was the issue of an employer's
responsibility in workplace health and safety. Here the paper looked at the transition from
industrial to post-industrial systems and then looked at the major issues of work injustice which
involve work stress, depressive disorders, and harassment. Further, this paper analyzed the issue
of industrial strikes under the TULRCA.76 While still on the issue of trade unions, the paper
discussed the conflict of trade unions and economic fundamental freedoms. The paper finished
74 ibid.
75 Maria Hegarty and others, ‘New Models of High Performance Work Systems: The Business Case for
Strategic HRM, Partnership and Diversity and Equality Systems’ (The Irish Human Rights and
Equality Commission) <https://www.ihrec.ie/documents/new-models-of-high-performance-work-
systems-the-business-case-for-strategic-hrm-partnership-and-diversity-and-equality-systems/>
accessed 25 April 2019.
76 TULRCA n 48

Employment Law 24
by analyzing the concept of equality focusing one the model of positive duty of promoting
equality.

Employment Law 25
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