Labour under the law: a new law of combination, and master and servant, in 21st‐century Britain?

• Published date: 01 November 2015
• Author: Paul Smith
• DOI: http://doi.org/10.1111/irj.12116
• Date: 01 November 2015

Labour under the law: a new law of

combination, and master and servant, in

21st-century Britain?

Paul Smith

ABSTRACT

It is valuable to evaluate contemporary employment law on industrial action and

trade unions, and employment protection, in relation to the 19th-century law of

combination, and master and servant. Such a historical comparison, despite differing

language and legal sanctions, focuses attention on the goal of legal ‘reform’—the

drive to control workers’collective organisations and enhance the managerial

prerogative in order to consolidate employers’capacity to determine the terms of

the contract of employment or for services, and the content of the pay–effort bargain,

that is, the real subordination of labour. It is a form of class struggle from above.

1 INTRODUCTION

The market is to work henceforth without the ‘obstacles’constructed by workers’trade unions freely

formed in solidarity by those employed in different employment units. The market is not even to be a

free market. It is a rigged market in which combination laws price labour into such jobs as there may

be. (Wedderburn, 1985: 43)

[T]he real objective is the return to an individualistic relationship of the master–servant type, with the

sole elimination of penal sanctions. (Wedderburn, 1998: 55)

Since 1979, successive governments have constructed a new framework of labour law.

Continuing to evolve, this comprises the restriction and regulation of trade unions’freedom

to take industrial action, the regulation of trade union government and administration, a

wide range of formal employment rights (some protecting the ‘employee’, others the wider

concept of ‘worker’), cost awards by employment tribunals and a fee regime for access to

tribunals. While a number of new employment rights, originating in the European

Community (EC)/European Union (EU), have circumscribed management’s discretion

to select and direct labour (for example, making discrimination on the basis of religious

affiliation and gender orientation unlawful) and to manage labour (for example, in relation

to working hours), the new framework—in the context of the decline in union membership,

organisation and collective bargaining so that a majority of workers are outside any form

of joint regulation—has legitimated and revitalised the managerial prerogative to

determine the parameters and content of the employment relationship.

Implicit in Wedderburn’s comments is the use of cross-classification (Elger, 2013:

250–57) as a heuristic tool to compare contemporary labour law with that of earlier,

distinctive historical periods. The law of combination, and master and servant,

© 2015 John Wiley & Sons Ltd

❒Correspondence should be addressed to Paul Smith, Management School, Keele University, Darwin

Building, Keele, Newcastle-under-Lyme ST5 5BG, UK; email: paulsmithblist@hotmail.co.uk

Industrial Relations Journal 46:5–6, 345–364

ISSN 0019-8692

provides a silhouette against which to explore the nature of the contemporary labour

law. Wedderburn’s cross-tabulation of combination law/criminal sanctions and

trade union law/civil immunity to give combination law/narrowed civil immunity

focuses attention on the central feature of the combination laws as confining the

scope of, and control over, workers’collective organisation and action, rather than

criminal sanctions. Similarly, Wedderburn cross-tabulates master and servant

relationship/criminal jurisdiction and employer and employee relationship/civil

jurisdiction to give master and servant relationship/civil jurisdiction, that is, the

reaffirmation of the prerogative power of the employer but, again, without the

support of criminal sanctions. The question is to what extent is it useful to attach

the labels of combination, and master and servant law, to the contemporary law

on trade unions, industrial action and the employment relationship?

2 THE 19TH-CENTURY LAW OF COMBINATION, AND MASTER AND

SERVANT

Building upon the long history of the common law and statutes regulating specific

trades, the Combination Acts 1799 and 1800 codified the criminal law so as to make

it a statutory offence for combinations of employers and workers to seek changes in

pay, hours of work, output, employment of other persons and controls over produc-

tion and business, with penal sanctions enforced by summary jurisdiction—that is, by

magistrates (Orth: ch. 4, 156–71; Deakin and Wilkinson, 2005: 58–61). In practice,

the application to employers was a formality: as the distillation of state’s and

employers’suspicion and hostility, indeed of all ‘respectable’society, to workers’

organisations and collective activity (Orth, 1991: 5), the Acts’focus and fear were

trade unions, against which they were an important reserve legal weapon.

Inspired by proponents of laissez-faire (Orth, 1991: ch. 5), the Combination Act

1824 repealed all preceding statutes and overrode the common law (by the grant of

immunity) to permit combinations to negotiate pay, hours and output; induce

breaches of contract; and regulate work. But violence, threats or intimidation

remained punishable. The 1824 Act was quickly superseded by that of 1825, which

restored the common law crime of conspiracy but workers could meet and agree to

negotiate changes in their own pay and conditions. However, it was a criminal offence

to use violence, threats, intimidation, molestation and obstruction to cause any

person to stop or accept work, to join any club or make any contribution or fine

for not complying with working rules, or to force a master to carry on business in a

certain way (Orth, 1991: 168; see also Curthoys: chs 1 and 2). The Molestation of

Workmen Act 1859 restated employers’and workers’rights to combine in order to

amend their contracts and permitted peaceful picketing.

The Trade Union Act 1871 began the process of removing the legal impediments to

trade unions and industrial action. Repealing the Combination Act 1825 (and the

Molestation of Workmen Act 1859), it declared that trade unions were not in

themselves unlawful by virtue of being in restraint of trade. It was followed by the

Conspiracy and Protection of Property Act 1875, which protected trade unions from

prosecutions for criminal conspiracy: ‘A line was drawn between public order and

industrial disputes’(Wedderburn, 1986: 521).

Originating in mediaeval common law and statute, reformed and codified in the

comprehensive Statute of Artificers 1562, master and servant law enshrined the

© 2015 John Wiley & Sons Ltd

346 Paul Smith