Welcome to Research Frontiers, a podcast series that highlights how our groundbreaking research informs teaching on the 150+ postgraduate programmes available at the University of Bristol.
Does the law always protect workers from their employers? Our host Ruby Lott-Lavigna is joined by Professor Alan Bogg, a professor of Labour Law at the University of Bristol, and Stuart Hurst, a student currently studying a master’s in Employment, Work and Equality Law. Together they discuss the relationship between workers’ rights and the law, the loopholes that have appeared over time, and what the future of employment could look like for workers in the UK.
Find out more about our LLM Law – Employment, Work and Equality and LLM Law – Labour Law and Corporate Governance programmes
Image Credit: Adobe Stock / Summit Art Creations
Transcript:
Transcript
00:00:00 Ruby Lott-Lavigna
From the University of Bristol, you are listening to research frontiers.
00:00:08 Ruby Lott-Lavigna
Hello and welcome to Research Frontiers, a podcast series from the University of Bristol. I’m your host, Ruby Lavinia, and throughout this series I’ll be joined by a collection of Bristol Sport leaders taking a deep dive into the research at the university, which is changing the world and enriching the education of students who study here. Our contributors will include some of the university’s most inspiring minds.
00:00:29 Ruby Lott-Lavigna
And the students who love them.
00:00:31 Ruby Lott-Lavigna
Throughout these conversations, we’ll uncover the transformative power of research both on our society and in solving global challenges, as well as in the future education of students.
00:00:43 Ruby Lott-Lavigna
In this episode, our attention was focused on the world of work, specifically the rights and rules contained within, and when it comes to labor, employment and work, law would be hard pressed to find a better versed expert than Professor Alan Bogg. Also joining on this episode’s current student, Stuart Hurst.
00:01:03 Ruby Lott-Lavigna
So Alan, we’d like to begin by just asking a bit about your areas of research and projects you’ve been involved in. We’ll get into some of the specifics shortly, but could you give us an overview of some?
00:01:12 Ruby Lott-Lavigna
Of your research.
00:01:13 Prof Alan Bogg
So I’ve examined labour law in its entirety and it’s a big subject. So over the years I’ve looked at trade, union rights, freedom of association, collective bargaining, the right to strike.
00:01:26 Prof Alan Bogg
Like currently, my research has been focused on employment status, so that’s the question when somebody qualifies as an employee or worker and qualifies for statutory rights, and that’s been particularly important in the gig economy. So recently there have been really important.
00:01:46 Prof Alan Bogg
Places in UK.
00:01:48 Prof Alan Bogg
And in Deliveroo and I’ve been involved in those debates and the question as to whether or not somebody qualifies in law as an employee. So that’s the kind of first area that I’ve looked at. And the second area has been the question of remedies for enforcement.
00:02:08 Prof Alan Bogg
So what happens when an employer violates your statutory rights? What remedies are available to?
00:02:15 Prof Alan Bogg
You and are the remedies currently provided in the law, effective in terms of supporting enforcement.
00:02:23 Ruby Lott-Lavigna
That’s really interesting. And Stuart, let’s bring you in here. What brought you to this course and how’s this kind of subject area always been your passion?
00:02:30 Stuart Hurst
I think like you mentioned.
00:02:31 Stuart Hurst
Before you’d be hard pressed to find, you know, academics in Labour or in this specific concentrate.
00:02:37 Stuart Hurst
You know, there’s a lot of institutions that offer employment law, but we’re still kind of takes it one step further and offers a specific pathway in employment law, which is the employment work and equality and, you know, you read some journal articles, you most of them will cite one of the academics and bristles that either Alan or Tonya or Phillip there. They’ll be cited pretty much everywhere.
00:02:56 Stuart Hurst
So it’s kind of the place to be for employment law, pretty much. So that’s why I’m.
00:03:00 Ruby Lott-Lavigna
Here. OK. And Alan, people might be familiar with your involvement in the piano ferries.
00:03:05 Ruby Lott-Lavigna
Fire and rehire.
00:03:06 Ruby Lott-Lavigna
Case which was.
00:03:07 Ruby Lott-Lavigna
Featured prominently in the news in early 2020.
00:03:09 Ruby Lott-Lavigna
Two, if that’s what would be able to kind of.
00:03:11 Ruby Lott-Lavigna
Summarise what happened there and how you came.
00:03:14 Ruby Lott-Lavigna
To be involved.
00:03:15 Prof Alan Bogg
Yeah. So I mean I I think my first contact with it was probably like everybody elses. So I’m always on my phone despite the fact that I can barely use it. But I think I clicked onto the Guardian app and there was a breaking news story about P&O having dismissed 800 seafarers without notice.
00:03:34 Prof Alan Bogg
And actually my first reaction was I’d be surprised if that was the full story that’s so flagrant. A thing to do. There must be some context. Maybe something’s been missed.
00:03:45 Prof Alan Bogg
And then over the next 12 hours, it became clear that P&O had in fact done exactly what was being reported in the breaking news story. Now, actually, there’s nothing legally complicated about what happened in terms of the substantive law. It was a clear breach of.
00:04:05 Prof Alan Bogg
Multiple legal provisions, the most fundamental one I think in that context, was the failure to consult with the trade union that represented the workers.
00:04:16 Prof Alan Bogg
And in fact, P&O didn’t argue that what it had done was lawful, but what it did was it it made a a settlement offer to each of the affected workers. And I think the aim of that was really just to kind of buy off any kind of legal challenge in the courts. So that really fitted with my.
00:04:37 Prof Alan Bogg
Academic work because I’ve just been focused on the question of remedies and enforce.
00:04:43 Prof Alan Bogg
And what happened in P&O exposed it very clearly that there was a gap in the legal framework and then within a couple of days the Select Committee in Parliament got in touch and asked if I’d be prepared to appear 24 hours later to talk about the case.
00:05:02 Ruby Lott-Lavigna
And how did?
00:05:03 Prof Alan Bogg
That go it was a really interesting process, nerve wracking because.
00:05:07 Prof Alan Bogg
Because I wrote and said yes, of course, and and then you begin to realise, is it always the case with any legal issue? It’s more complicated than what you thought. So I started to look at the particular contracts of the seafarers, the fact that they weren’t, in fact employed in the United Kingdom.
00:05:29 Prof Alan Bogg
That they were employed offshore.
00:05:31 Prof Alan Bogg
War that some of the work took place in the territorial waters of the UK, but some of the work took place outside of the territorial waters. And then you begin to realise, actually this is in some ways rather complicated. In the end, all of those complications didn’t affect the basic point.
00:05:52 Prof Alan Bogg
Which was as the Chief Operating Officer, admitted himself in the Select Committee. We broke the law. We knew we were breaking.
00:06:00 Prof Alan Bogg
Law. But what we did is we offered a financial settlement to buy off the legal challenge.
00:06:07 Ruby Lott-Lavigna
And and what has kind of been the fallout from the case to and ledge? Do you know if the situation has resulted in any kind of positive changes? Yeah. Or is it still very early days?
00:06:16 Prof Alan Bogg
I think it’s still early days. My suggestions to the Committee for broader reform of enforcement and remedies. I think at the current time.
00:06:27 Prof Alan Bogg
Don’t look like they will go forward.
00:06:29 Prof Alan Bogg
Good, which is disappointing I think because I think what P&O did do is it exposed some really significant gaps to give an example, the protective award for breach of consultation has a CAP now that’s designed to make business decisions and.
00:06:50 Prof Alan Bogg
Business planning.
00:06:51 Prof Alan Bogg
Calculable for employers, which is probably a good thing, but it can be abused. When an employer calculates the cost of breaching the law and then makes a decision that the likely profits of breaching the law will exceed the costs in the tribunal.
00:07:09 Ruby Lott-Lavigna
So you’ve mentioned that one issue has something that can kind of be learned after the P&O case. Are there any other areas or lessons you can learn? Could you see any other areas of employment where something similar might be on the horizon or are these situations just quite impossible to predict?
00:07:26 Prof Alan Bogg
Well, it’s interesting that at the outset you described P&O as a fire and rehire case. And I think technically we’ve got to be quite careful about that description because in fact what happened in P&O was rather different. So all of the unionised C Ferrers were dismissed.
00:07:46 Prof Alan Bogg
And then an entirely new workforce was appointed through agencies that operated outside of the United Kingdom and therefore were not subject to the national minimum wage requirement.
00:08:01 Prof Alan Bogg
So, in fact, P&O was was just a a situation of firing a new workforce was hired that was much cheaper and it was also not a unionised workforce. But I think I understand why people describe P&O as as like fire and rehire because it is what it involves.
00:08:20 Prof Alan Bogg
Is the reduction of terms and conditions in current contracts and the issuing of new contracts that reduce protections and reduce wage level.
00:08:33 Prof Alan Bogg
And I think what you will see over the next year is a continued use of fire and rehire across the UK. So I think that does require legislative attention and I I would be hopeful that there’s a cross party consensus.
00:08:53 Prof Alan Bogg
That fire and rehire needs restricting and regulating much more tightly than it is currently, so that I think could be a potential area that you could build political consensus around.
00:09:07
Do.
00:09:07 Ruby Lott-Lavigna
You think there’s genuine political interest in making those legislative changes because it seems to me that.
00:09:13 Ruby Lott-Lavigna
This is an issue that continues to arise and I mean the piano fairies is a great example of a as you kind of said at the beginning, such a stark situation that you kind of couldn’t believe that that had actually.
00:09:24 Ruby Lott-Lavigna
Happened and yet there haven’t kind of been the changes you’ve called for. Do you think? Yeah, there is the sort of desire or pressure in government to do that?
00:09:34 Prof Alan Bogg
And that’s a really good question Ruby. So I think the danger all this was with P&O that it becomes about P&O and one of the things I’ve tried to emphasise in the Select Committee.
00:09:46 Prof Alan Bogg
And I’m not sure how persuasively I did this. Was that actually it isn’t really about P&O, although it’s quite nice. It scratches a political itch to vilify certain individuals and certain companies, but focusing on culpable individuals obscures attention to the wider.
00:10:08 Prof Alan Bogg
Structural context that allowed that to happen and the fact that we have very weak enforcement and weak remedies in the United.
00:10:18 Prof Alan Bogg
So is there the political will? I think there was genuine political anger across the political spectrum about what had happened, but only weeks later the government pulled the employment bill from the Queen’s Speech and the employment bill has been promised now.
00:10:38 Prof Alan Bogg
For.
00:10:39 Prof Alan Bogg
Years, so I’m not optimistic that in this Parliament we’ll see the statutory changes necessary to respond to that problem. But I do think that another year of fire and re higher and other abuses being exposed there will be electoral pressure.
00:11:01 Prof Alan Bogg
For action and when there is electoral pressure for action, then governments in the end have to act.
00:11:08
Yeah.
00:11:08 Ruby Lott-Lavigna
That’s so that’s a great point. And has the case kind of affected your own life at all your own work, like how you sort of feeling now a few months?
00:11:16 Ruby Lott-Lavigna
Down the road from it.
00:11:17 Prof Alan Bogg
Well, obviously it was very sad to to read what what had happened and it always feels very personal to me in terms of how I came into labour law, you know, I.
00:11:28 Prof Alan Bogg
I was brought up in the North West in the 1980s. You know, I was from a single parent family.
00:11:35 Prof Alan Bogg
Me, my mum cleaned and then engaged in social care for people with mental disabilities in the community. So we lived in difficult economic circumstances. So whenever I see things like this, it brings it home to me, obviously, how lucky I am.
00:11:55 Prof Alan Bogg
Now in terms of what I?
00:11:56 Prof Alan Bogg
Do but also how much there is left to do to make sure that people don’t live with the spectre of uncertainty in their lives. Because I think that was the terrible thing about P&O, not simply the loss of employment but the loss of employment.
00:12:17 Prof Alan Bogg
In circumstances where these people were treated as entirely dispensable and didn’t even have the courtesy of some notice to make planning decisions for their own lives.
00:12:39 Ruby Lott-Lavigna
Stuart, can you talk to us a bit about your work? What have your studies involved in recent times?
00:12:45 Stuart Hurst
So recently we’ve just finished the top component of the masters, so a lot of it is now researching, preparing for the dissertation period. So I’ve been looking at the changing scope of trade union power and how people are looking towards trade unions. There’s a push for a more environmentally friendly practices which might affect workers rights. So we’re kind of looking at how.
00:13:05 Stuart Hurst
Trade unions collective bargaining.
00:13:07 Stuart Hurst
Industrial action can be used to like ensure that workers are protected when these rights are changing. It’s a fascinating topic and I’m looking forward to looking into.
00:13:15 Ruby Lott-Lavigna
It more and if you’re familiar with Alan’s work, what are your thoughts on his his research and projects? Have you found any particular resonance with the stuff you sent?
00:13:23 Stuart Hurst
To you, absolutely, absolutely. A lot about some of us do have some of.
00:13:27 Stuart Hurst
And work on the seminar reading. So we’ve done the illegality doctrine, migration and the the role of the contract in in ascertaining employment status. So there’s a lot of islands work that we do come across in terms of studies.
00:13:40 Stuart Hurst
And you know.
00:13:40 Stuart Hurst
Just separately as.
00:13:41 Stuart Hurst
Well, and I think.
00:13:43 Stuart Hurst
You know, we don’t always agree.
00:13:44 Stuart Hurst
With what the academics saying, but I think the whole.
00:13:47 Stuart Hurst
Point of academia.
00:13:47 Stuart Hurst
Is not to just take everything that you say as gospel, but to like use alternative arguments to build your own as someone else have definitely been a good forum for discussion and like building our own knowledge based on.
00:14:00 Stuart Hurst
Other people’s work.
00:14:01
Yeah.
00:14:01 Ruby Lott-Lavigna
Right. And Alan, how has your experience of education been both as a student and an academic?
00:14:08 Prof Alan Bogg
Well, it’s interesting. I I was listening to to Stuart talking about his own experience and and that has always been very much my experience that what I’ve really appreciated about working in academia is meeting people who view the world differently, meeting people who disagree with me.
00:14:28 Prof Alan Bogg
On the law, talking to people about the disagreement, trying to understand what that’s about and using that as a kind of jumping off point for my own thinking.
00:14:41 Prof Alan Bogg
People who taught me were generous enough not to teach me what to think. They taught me how to think, and I see my responsibility as an educator today to be exactly that, and nothing gives me a greater thrill than reading an essay where a student tells me in a very eloquent.
00:15:02 Prof Alan Bogg
Way. Why what I’ve said is complete rubbish. I do love that aspect of academic.
00:15:10 Prof Alan Bogg
Life and I hope that’s something that I’ve carried into my own practices as an educator.
00:15:15 Ruby Lott-Lavigna
And back to your kind of specific area of interest, do you feel a strong connection to the area of workers rights in particular? And I I guess, what is it about the subject that keeps you involved and keeps you inspired?
00:15:27 Prof Alan Bogg
I find it kind of endlessly fascinating. Intellectually, I’m not one of those people and and maybe this is a kind of measure of of my own limitations as a thinker.
00:15:39 Prof Alan Bogg
Who finds any of it easy? So every day that I open a book or I think about a new topic, or I even think about a familiar topic, I always feel like I’m absolutely at the limit of what I’m comfortable with. It feels intellectually challenging.
00:15:59 Prof Alan Bogg
And I find it difficult. I struggle to make sense of the cases and that drives me on and the day I find it easy is the day that I give it up and go and do something else. So I feel endlessly stretched intellectually. Now. That would be true of any legal discipline. You know, I could be doing.
00:16:19 Prof Alan Bogg
Contract. I could be doing company law, so I think it’s the fact that all of this is occurring within a context where I feel in connection with my forefathers and four.
00:16:32 Prof Alan Bogg
Others, you know my family. I can trace my family history back in the northwest, they worked on the railways. They worked in the cotton mills. So I’m just at the moment writing a book on freedom of association and writing a chapter on the 19th century combination laws. All of that action.
00:16:52 Prof Alan Bogg
Took place in the cotton mills in Blackburn and Preston.
00:16:57 Prof Alan Bogg
And that feels very much alive to me.
00:16:59 Ruby Lott-Lavigna
I think people would probably look quite sadly on the last, maybe like 30 or 40 years of workers rights and labour law and see how since the 80s, the disempowerment of unions has really affected workers and the expansion of the gay economy has really limited people’s ability to kind of seek rights in the workplace.
00:17:19 Ruby Lott-Lavigna
For example, is that something that has been difficult to work with, or is it something that has also?
00:17:26 Ruby Lott-Lavigna
Aided your work and giving you kind of more of a challenge and an intellectual challenge.
00:17:31 Prof Alan Bogg
I don’t think despondency is a luxury that people in my privileged position can afford to indulge. There’s no question that things have been difficult for trade unions, that the labour market is a much more hostile place.
00:17:49 Prof Alan Bogg
Than it was 40 years ago, and particularly for those people who are already vulnerable, like migrant workers who are working in the labour market. The one beacon of hope that I see is a shift in the attitude of the courts to labour rights. So for the last 40 years.
00:18:09 Prof Alan Bogg
It’s been relatively difficult to get progressive legislation to deal with labour abuses.
00:18:16 Prof Alan Bogg
But one thing I think has changed in my lifetime as a labour lawyer is that the courts, I think, are much more willing to respond to these difficulties. If you put a clever argument in front of them to consider. So I think in terms of how I would be regarded as a labour lawyer.
00:18:39 Prof Alan Bogg
And what my kind of distinctive niche is in terms of scholarship?
00:18:45 Prof Alan Bogg
It’s writing academic work that judges are inclined to engage with, and one of the great privileges of my work as a legal scholar has been when appellate courts cite my work in support of progressive legal.
00:19:04 Prof Alan Bogg
Change so I don’t think we should be entirely despondent, but I think we have to focus on the arenas for legal change that at the current time are more likely to be productive for workers.
00:19:19 Ruby Lott-Lavigna
And I’m speaking to you as a professor at the University of Bristol. So I have a very easy question for you, which is?
00:19:25 Ruby Lott-Lavigna
Why Bristol tell me about what brings you here? Kind of all places and keeps you here.
00:19:29 Prof Alan Bogg
Well, the opportunity opened up at Bristol and over the last five years we have seen a real build up of expertise at the university. So we’ve established the Centre for Law Work. We have a specialist LLM program.
00:19:45 Prof Alan Bogg
And I would say we have the highest concentration of leading academic labour lawyers, certainly in the UK and probably around the world. And what’s wonderful about that group is there’s a real diversity of approach. There’s a diversity of political outlook.
00:20:06 Prof Alan Bogg
But in the face of that, I think we have some really productive engagements with each other and with the students. So that’s what keeps me here and it’s been a wonderful five years at Bristol.
00:20:17 Ruby Lott-Lavigna
And how about you, Stuart? Why is?
00:20:18 Ruby Lott-Lavigna
Bristol the place for.
00:20:19 Ruby Lott-Lavigna
You I think.
00:20:20 Stuart Hurst
Pretty much the same as Alan’s just said, the specialism, you’re not gonna find anywhere else in the UK that has.
00:20:26 Stuart Hurst
This level of.
00:20:27 Stuart Hurst
Specials and his academics covering all the different components of labour law. So it’s not just, you know, your individual rights you’ve got or like Tony Abbott doing migrant Labour. You’ve got himself doing collective labour rights. Silver Collins doing individual rights. You’ve got all this special event.
00:20:42 Stuart Hurst
And they all work together and all the courses that they do link together, so it’s definitely.
00:20:46 Stuart Hurst
Kind of the place to be for labour law.
00:20:48 Ruby Lott-Lavigna
And Alan, aside from qualifications, what would a prospective student achieve from studying a course such as the Masters in employment, work and equality at Bristol?
00:20:56 Prof Alan Bogg
One thing I would say is looking at labour law as a whole, thinking about how the different parts connect with each other.
00:21:05 Prof Alan Bogg
Having time and space to think about it as an intellectual thing, I think gives you something really, really valuable when you go into practice, whether that’s in an NGO or as a lawyer. Because when you’ve got case after case that you’re preparing as an advocate.
00:21:25 Prof Alan Bogg
You’re busy, and sometimes it’s really hard to step back and look at the bigger picture.
00:21:31 Prof Alan Bogg
And I think what the LM would give anybody who is keen to go into the world of making work better is having that opportunity to think in an open-ended way and a deep way about the subject will make you much more incisive.
00:21:50 Prof Alan Bogg
As somebody making change happen in the world.
00:21:54 Ruby Lott-Lavigna
And just finally, how do?
00:21:56 Ruby Lott-Lavigna
You feel about the future of of workers.
00:21:58 Ruby Lott-Lavigna
Rights and employment law.
00:22:00 Ruby Lott-Lavigna
Does your research ever make you feel negative about where we currently are or offer positivity by way of opening doors and solving problems?
00:22:07 Prof Alan Bogg
So I think there’s no space really or time to be negative now, it doesn’t help anybody. People in my position are in a privileged position and it’s incumbent.
00:22:20 Prof Alan Bogg
Upon us to use our learning and our privilege to go away, think about the subject, think about how to make things better, whether that’s through legislatures, or whether that’s through the courts.
00:22:34 Prof Alan Bogg
I think it’s understanding the limits of what can be achieved. I think one of the lessons that I learned from P&O is that change for the better isn’t an intellectual exercise. Often I could tell a group of politicians what would make an ideal piece of legislation that isn’t necessarily gonna happen.
00:22:55 Prof Alan Bogg
In practice.
00:22:56 Prof Alan Bogg
But you can make change happen in small ways incrementally step by step and I think over my time as an academic, whilst there have been very negative changes in the labour market, I can also point to incremental changes for the better.
00:23:16 Prof Alan Bogg
In the case law and in small pieces of legislative change, so never give up the world is there. It’s waiting for you to make an imprint on it.
00:23:27 Ruby Lott-Lavigna
That’s very inspiring. I’m sure to any students testing or future students. And Stuart, maybe just finished on your advice. Do you have any for students thinking of studying?
00:23:36 Ruby Lott-Lavigna
On this course.
00:23:37 Stuart Hurst
I think I’ve got 2 main pieces of advice. First of all, get a Twitter account, a lot of employment law academics are on Twitter. They post a lot of valuable stuff there. And then second of all, probably do the research into the courses into the institutions. If it’s something you wanna do, go for it. You’re gonna get the things he did. Do you gonna get the things you didn’t?
00:23:55 Stuart Hurst
To like make sure you do like I said, make change like. You can only make change by doing so just.
00:24:00 Ruby Lott-Lavigna
Do great, Alan and Stuart, thank you so much for your time and such an inspiring conversation. It’s been fascinating to chat with you. So thank you for sharing your time and knowledge with us. Thanks, guys. That was great.
00:24:13 Ruby Lott-Lavigna
Thank you for listening to research.
00:24:14 Ruby Lott-Lavigna
Letters from Bristol University. We hope you found inspiration, information, answers and more in all of these great conversations.
00:24:21 Ruby Lott-Lavigna
Don’t forget to check in over at www.bristol.ac.uk/study/postgraduate for more details on Bristol courses and information about Bristol University. Also keep the podcast nearby, subscribe to research frontiers wherever you get your favorite podcasts, and please do share with people who might benefit to you. Thank you for listening to research frontiers.
Audio file
Transcript
00:00:00 Ruby Lott-Lavigna
From the University of Bristol, you are listening to research frontiers.
00:00:08 Ruby Lott-Lavigna
Hello and welcome to Research Frontiers, a podcast series from the University of Bristol. I’m your host, Ruby Lavinia, and throughout this series I’ll be joined by a collection of Bristol Sport leaders taking a deep dive into the research at the university, which is changing the world and enriching the education of students who study here. Our contributors will include some of the university’s most inspiring minds.
00:00:29 Ruby Lott-Lavigna
And the students who love them.
00:00:31 Ruby Lott-Lavigna
Throughout these conversations, we’ll uncover the transformative power of research both on our society and in solving global challenges, as well as in the future education of students.
00:00:43 Ruby Lott-Lavigna
In this episode, our attention was focused on the world of work, specifically the rights and rules contained within, and when it comes to labor, employment and work, law would be hard pressed to find a better versed expert than Professor Alan Bogg. Also joining on this episode’s current student, Stuart Hurst.
00:01:03 Ruby Lott-Lavigna
So Alan, we’d like to begin by just asking a bit about your areas of research and projects you’ve been involved in. We’ll get into some of the specifics shortly, but could you give us an overview of some?
00:01:12 Ruby Lott-Lavigna
Of your research.
00:01:13 Prof Alan Bogg
So I’ve examined labour law in its entirety and it’s a big subject. So over the years I’ve looked at trade, union rights, freedom of association, collective bargaining, the right to strike.
00:01:26 Prof Alan Bogg
Like currently, my research has been focused on employment status, so that’s the question when somebody qualifies as an employee or worker and qualifies for statutory rights, and that’s been particularly important in the gig economy. So recently there have been really important.
00:01:46 Prof Alan Bogg
Places in UK.
00:01:48 Prof Alan Bogg
And in Deliveroo and I’ve been involved in those debates and the question as to whether or not somebody qualifies in law as an employee. So that’s the kind of first area that I’ve looked at. And the second area has been the question of remedies for enforcement.
00:02:08 Prof Alan Bogg
So what happens when an employer violates your statutory rights? What remedies are available to?
00:02:15 Prof Alan Bogg
You and are the remedies currently provided in the law, effective in terms of supporting enforcement.
00:02:23 Ruby Lott-Lavigna
That’s really interesting. And Stuart, let’s bring you in here. What brought you to this course and how’s this kind of subject area always been your passion?
00:02:30 Stuart Hurst
I think like you mentioned.
00:02:31 Stuart Hurst
Before you’d be hard pressed to find, you know, academics in Labour or in this specific concentrate.
00:02:37 Stuart Hurst
You know, there’s a lot of institutions that offer employment law, but we’re still kind of takes it one step further and offers a specific pathway in employment law, which is the employment work and equality and, you know, you read some journal articles, you most of them will cite one of the academics and bristles that either Alan or Tonya or Phillip there. They’ll be cited pretty much everywhere.
00:02:56 Stuart Hurst
So it’s kind of the place to be for employment law, pretty much. So that’s why I’m.
00:03:00 Ruby Lott-Lavigna
Here. OK. And Alan, people might be familiar with your involvement in the piano ferries.
00:03:05 Ruby Lott-Lavigna
Fire and rehire.
00:03:06 Ruby Lott-Lavigna
Case which was.
00:03:07 Ruby Lott-Lavigna
Featured prominently in the news in early 2020.
00:03:09 Ruby Lott-Lavigna
Two, if that’s what would be able to kind of.
00:03:11 Ruby Lott-Lavigna
Summarise what happened there and how you came.
00:03:14 Ruby Lott-Lavigna
To be involved.
00:03:15 Prof Alan Bogg
Yeah. So I mean I I think my first contact with it was probably like everybody elses. So I’m always on my phone despite the fact that I can barely use it. But I think I clicked onto the Guardian app and there was a breaking news story about P&O having dismissed 800 seafarers without notice.
00:03:34 Prof Alan Bogg
And actually my first reaction was I’d be surprised if that was the full story that’s so flagrant. A thing to do. There must be some context. Maybe something’s been missed.
00:03:45 Prof Alan Bogg
And then over the next 12 hours, it became clear that P&O had in fact done exactly what was being reported in the breaking news story. Now, actually, there’s nothing legally complicated about what happened in terms of the substantive law. It was a clear breach of.
00:04:05 Prof Alan Bogg
Multiple legal provisions, the most fundamental one I think in that context, was the failure to consult with the trade union that represented the workers.
00:04:16 Prof Alan Bogg
And in fact, P&O didn’t argue that what it had done was lawful, but what it did was it it made a a settlement offer to each of the affected workers. And I think the aim of that was really just to kind of buy off any kind of legal challenge in the courts. So that really fitted with my.
00:04:37 Prof Alan Bogg
Academic work because I’ve just been focused on the question of remedies and enforce.
00:04:43 Prof Alan Bogg
And what happened in P&O exposed it very clearly that there was a gap in the legal framework and then within a couple of days the Select Committee in Parliament got in touch and asked if I’d be prepared to appear 24 hours later to talk about the case.
00:05:02 Ruby Lott-Lavigna
And how did?
00:05:03 Prof Alan Bogg
That go it was a really interesting process, nerve wracking because.
00:05:07 Prof Alan Bogg
Because I wrote and said yes, of course, and and then you begin to realise, is it always the case with any legal issue? It’s more complicated than what you thought. So I started to look at the particular contracts of the seafarers, the fact that they weren’t, in fact employed in the United Kingdom.
00:05:29 Prof Alan Bogg
That they were employed offshore.
00:05:31 Prof Alan Bogg
War that some of the work took place in the territorial waters of the UK, but some of the work took place outside of the territorial waters. And then you begin to realise, actually this is in some ways rather complicated. In the end, all of those complications didn’t affect the basic point.
00:05:52 Prof Alan Bogg
Which was as the Chief Operating Officer, admitted himself in the Select Committee. We broke the law. We knew we were breaking.
00:06:00 Prof Alan Bogg
Law. But what we did is we offered a financial settlement to buy off the legal challenge.
00:06:07 Ruby Lott-Lavigna
And and what has kind of been the fallout from the case to and ledge? Do you know if the situation has resulted in any kind of positive changes? Yeah. Or is it still very early days?
00:06:16 Prof Alan Bogg
I think it’s still early days. My suggestions to the Committee for broader reform of enforcement and remedies. I think at the current time.
00:06:27 Prof Alan Bogg
Don’t look like they will go forward.
00:06:29 Prof Alan Bogg
Good, which is disappointing I think because I think what P&O did do is it exposed some really significant gaps to give an example, the protective award for breach of consultation has a CAP now that’s designed to make business decisions and.
00:06:50 Prof Alan Bogg
Business planning.
00:06:51 Prof Alan Bogg
Calculable for employers, which is probably a good thing, but it can be abused. When an employer calculates the cost of breaching the law and then makes a decision that the likely profits of breaching the law will exceed the costs in the tribunal.
00:07:09 Ruby Lott-Lavigna
So you’ve mentioned that one issue has something that can kind of be learned after the P&O case. Are there any other areas or lessons you can learn? Could you see any other areas of employment where something similar might be on the horizon or are these situations just quite impossible to predict?
00:07:26 Prof Alan Bogg
Well, it’s interesting that at the outset you described P&O as a fire and rehire case. And I think technically we’ve got to be quite careful about that description because in fact what happened in P&O was rather different. So all of the unionised C Ferrers were dismissed.
00:07:46 Prof Alan Bogg
And then an entirely new workforce was appointed through agencies that operated outside of the United Kingdom and therefore were not subject to the national minimum wage requirement.
00:08:01 Prof Alan Bogg
So, in fact, P&O was was just a a situation of firing a new workforce was hired that was much cheaper and it was also not a unionised workforce. But I think I understand why people describe P&O as as like fire and rehire because it is what it involves.
00:08:20 Prof Alan Bogg
Is the reduction of terms and conditions in current contracts and the issuing of new contracts that reduce protections and reduce wage level.
00:08:33 Prof Alan Bogg
And I think what you will see over the next year is a continued use of fire and rehire across the UK. So I think that does require legislative attention and I I would be hopeful that there’s a cross party consensus.
00:08:53 Prof Alan Bogg
That fire and rehire needs restricting and regulating much more tightly than it is currently, so that I think could be a potential area that you could build political consensus around.
00:09:07
Do.
00:09:07 Ruby Lott-Lavigna
You think there’s genuine political interest in making those legislative changes because it seems to me that.
00:09:13 Ruby Lott-Lavigna
This is an issue that continues to arise and I mean the piano fairies is a great example of a as you kind of said at the beginning, such a stark situation that you kind of couldn’t believe that that had actually.
00:09:24 Ruby Lott-Lavigna
Happened and yet there haven’t kind of been the changes you’ve called for. Do you think? Yeah, there is the sort of desire or pressure in government to do that?
00:09:34 Prof Alan Bogg
And that’s a really good question Ruby. So I think the danger all this was with P&O that it becomes about P&O and one of the things I’ve tried to emphasise in the Select Committee.
00:09:46 Prof Alan Bogg
And I’m not sure how persuasively I did this. Was that actually it isn’t really about P&O, although it’s quite nice. It scratches a political itch to vilify certain individuals and certain companies, but focusing on culpable individuals obscures attention to the wider.
00:10:08 Prof Alan Bogg
Structural context that allowed that to happen and the fact that we have very weak enforcement and weak remedies in the United.
00:10:18 Prof Alan Bogg
So is there the political will? I think there was genuine political anger across the political spectrum about what had happened, but only weeks later the government pulled the employment bill from the Queen’s Speech and the employment bill has been promised now.
00:10:38 Prof Alan Bogg
For.
00:10:39 Prof Alan Bogg
Years, so I’m not optimistic that in this Parliament we’ll see the statutory changes necessary to respond to that problem. But I do think that another year of fire and re higher and other abuses being exposed there will be electoral pressure.
00:11:01 Prof Alan Bogg
For action and when there is electoral pressure for action, then governments in the end have to act.
00:11:08
Yeah.
00:11:08 Ruby Lott-Lavigna
That’s so that’s a great point. And has the case kind of affected your own life at all your own work, like how you sort of feeling now a few months?
00:11:16 Ruby Lott-Lavigna
Down the road from it.
00:11:17 Prof Alan Bogg
Well, obviously it was very sad to to read what what had happened and it always feels very personal to me in terms of how I came into labour law, you know, I.
00:11:28 Prof Alan Bogg
I was brought up in the North West in the 1980s. You know, I was from a single parent family.
00:11:35 Prof Alan Bogg
Me, my mum cleaned and then engaged in social care for people with mental disabilities in the community. So we lived in difficult economic circumstances. So whenever I see things like this, it brings it home to me, obviously, how lucky I am.
00:11:55 Prof Alan Bogg
Now in terms of what I?
00:11:56 Prof Alan Bogg
Do but also how much there is left to do to make sure that people don’t live with the spectre of uncertainty in their lives. Because I think that was the terrible thing about P&O, not simply the loss of employment but the loss of employment.
00:12:17 Prof Alan Bogg
In circumstances where these people were treated as entirely dispensable and didn’t even have the courtesy of some notice to make planning decisions for their own lives.
00:12:39 Ruby Lott-Lavigna
Stuart, can you talk to us a bit about your work? What have your studies involved in recent times?
00:12:45 Stuart Hurst
So recently we’ve just finished the top component of the masters, so a lot of it is now researching, preparing for the dissertation period. So I’ve been looking at the changing scope of trade union power and how people are looking towards trade unions. There’s a push for a more environmentally friendly practices which might affect workers rights. So we’re kind of looking at how.
00:13:05 Stuart Hurst
Trade unions collective bargaining.
00:13:07 Stuart Hurst
Industrial action can be used to like ensure that workers are protected when these rights are changing. It’s a fascinating topic and I’m looking forward to looking into.
00:13:15 Ruby Lott-Lavigna
It more and if you’re familiar with Alan’s work, what are your thoughts on his his research and projects? Have you found any particular resonance with the stuff you sent?
00:13:23 Stuart Hurst
To you, absolutely, absolutely. A lot about some of us do have some of.
00:13:27 Stuart Hurst
And work on the seminar reading. So we’ve done the illegality doctrine, migration and the the role of the contract in in ascertaining employment status. So there’s a lot of islands work that we do come across in terms of studies.
00:13:40 Stuart Hurst
And you know.
00:13:40 Stuart Hurst
Just separately as.
00:13:41 Stuart Hurst
Well, and I think.
00:13:43 Stuart Hurst
You know, we don’t always agree.
00:13:44 Stuart Hurst
With what the academics saying, but I think the whole.
00:13:47 Stuart Hurst
Point of academia.
00:13:47 Stuart Hurst
Is not to just take everything that you say as gospel, but to like use alternative arguments to build your own as someone else have definitely been a good forum for discussion and like building our own knowledge based on.
00:14:00 Stuart Hurst
Other people’s work.
00:14:01
Yeah.
00:14:01 Ruby Lott-Lavigna
Right. And Alan, how has your experience of education been both as a student and an academic?
00:14:08 Prof Alan Bogg
Well, it’s interesting. I I was listening to to Stuart talking about his own experience and and that has always been very much my experience that what I’ve really appreciated about working in academia is meeting people who view the world differently, meeting people who disagree with me.
00:14:28 Prof Alan Bogg
On the law, talking to people about the disagreement, trying to understand what that’s about and using that as a kind of jumping off point for my own thinking.
00:14:41 Prof Alan Bogg
People who taught me were generous enough not to teach me what to think. They taught me how to think, and I see my responsibility as an educator today to be exactly that, and nothing gives me a greater thrill than reading an essay where a student tells me in a very eloquent.
00:15:02 Prof Alan Bogg
Way. Why what I’ve said is complete rubbish. I do love that aspect of academic.
00:15:10 Prof Alan Bogg
Life and I hope that’s something that I’ve carried into my own practices as an educator.
00:15:15 Ruby Lott-Lavigna
And back to your kind of specific area of interest, do you feel a strong connection to the area of workers rights in particular? And I I guess, what is it about the subject that keeps you involved and keeps you inspired?
00:15:27 Prof Alan Bogg
I find it kind of endlessly fascinating. Intellectually, I’m not one of those people and and maybe this is a kind of measure of of my own limitations as a thinker.
00:15:39 Prof Alan Bogg
Who finds any of it easy? So every day that I open a book or I think about a new topic, or I even think about a familiar topic, I always feel like I’m absolutely at the limit of what I’m comfortable with. It feels intellectually challenging.
00:15:59 Prof Alan Bogg
And I find it difficult. I struggle to make sense of the cases and that drives me on and the day I find it easy is the day that I give it up and go and do something else. So I feel endlessly stretched intellectually. Now. That would be true of any legal discipline. You know, I could be doing.
00:16:19 Prof Alan Bogg
Contract. I could be doing company law, so I think it’s the fact that all of this is occurring within a context where I feel in connection with my forefathers and four.
00:16:32 Prof Alan Bogg
Others, you know my family. I can trace my family history back in the northwest, they worked on the railways. They worked in the cotton mills. So I’m just at the moment writing a book on freedom of association and writing a chapter on the 19th century combination laws. All of that action.
00:16:52 Prof Alan Bogg
Took place in the cotton mills in Blackburn and Preston.
00:16:57 Prof Alan Bogg
And that feels very much alive to me.
00:16:59 Ruby Lott-Lavigna
I think people would probably look quite sadly on the last, maybe like 30 or 40 years of workers rights and labour law and see how since the 80s, the disempowerment of unions has really affected workers and the expansion of the gay economy has really limited people’s ability to kind of seek rights in the workplace.
00:17:19 Ruby Lott-Lavigna
For example, is that something that has been difficult to work with, or is it something that has also?
00:17:26 Ruby Lott-Lavigna
Aided your work and giving you kind of more of a challenge and an intellectual challenge.
00:17:31 Prof Alan Bogg
I don’t think despondency is a luxury that people in my privileged position can afford to indulge. There’s no question that things have been difficult for trade unions, that the labour market is a much more hostile place.
00:17:49 Prof Alan Bogg
Than it was 40 years ago, and particularly for those people who are already vulnerable, like migrant workers who are working in the labour market. The one beacon of hope that I see is a shift in the attitude of the courts to labour rights. So for the last 40 years.
00:18:09 Prof Alan Bogg
It’s been relatively difficult to get progressive legislation to deal with labour abuses.
00:18:16 Prof Alan Bogg
But one thing I think has changed in my lifetime as a labour lawyer is that the courts, I think, are much more willing to respond to these difficulties. If you put a clever argument in front of them to consider. So I think in terms of how I would be regarded as a labour lawyer.
00:18:39 Prof Alan Bogg
And what my kind of distinctive niche is in terms of scholarship?
00:18:45 Prof Alan Bogg
It’s writing academic work that judges are inclined to engage with, and one of the great privileges of my work as a legal scholar has been when appellate courts cite my work in support of progressive legal.
00:19:04 Prof Alan Bogg
Change so I don’t think we should be entirely despondent, but I think we have to focus on the arenas for legal change that at the current time are more likely to be productive for workers.
00:19:19 Ruby Lott-Lavigna
And I’m speaking to you as a professor at the University of Bristol. So I have a very easy question for you, which is?
00:19:25 Ruby Lott-Lavigna
Why Bristol tell me about what brings you here? Kind of all places and keeps you here.
00:19:29 Prof Alan Bogg
Well, the opportunity opened up at Bristol and over the last five years we have seen a real build up of expertise at the university. So we’ve established the Centre for Law Work. We have a specialist LLM program.
00:19:45 Prof Alan Bogg
And I would say we have the highest concentration of leading academic labour lawyers, certainly in the UK and probably around the world. And what’s wonderful about that group is there’s a real diversity of approach. There’s a diversity of political outlook.
00:20:06 Prof Alan Bogg
But in the face of that, I think we have some really productive engagements with each other and with the students. So that’s what keeps me here and it’s been a wonderful five years at Bristol.
00:20:17 Ruby Lott-Lavigna
And how about you, Stuart? Why is?
00:20:18 Ruby Lott-Lavigna
Bristol the place for.
00:20:19 Ruby Lott-Lavigna
You I think.
00:20:20 Stuart Hurst
Pretty much the same as Alan’s just said, the specialism, you’re not gonna find anywhere else in the UK that has.
00:20:26 Stuart Hurst
This level of.
00:20:27 Stuart Hurst
Specials and his academics covering all the different components of labour law. So it’s not just, you know, your individual rights you’ve got or like Tony Abbott doing migrant Labour. You’ve got himself doing collective labour rights. Silver Collins doing individual rights. You’ve got all this special event.
00:20:42 Stuart Hurst
And they all work together and all the courses that they do link together, so it’s definitely.
00:20:46 Stuart Hurst
Kind of the place to be for labour law.
00:20:48 Ruby Lott-Lavigna
And Alan, aside from qualifications, what would a prospective student achieve from studying a course such as the Masters in employment, work and equality at Bristol?
00:20:56 Prof Alan Bogg
One thing I would say is looking at labour law as a whole, thinking about how the different parts connect with each other.
00:21:05 Prof Alan Bogg
Having time and space to think about it as an intellectual thing, I think gives you something really, really valuable when you go into practice, whether that’s in an NGO or as a lawyer. Because when you’ve got case after case that you’re preparing as an advocate.
00:21:25 Prof Alan Bogg
You’re busy, and sometimes it’s really hard to step back and look at the bigger picture.
00:21:31 Prof Alan Bogg
And I think what the LM would give anybody who is keen to go into the world of making work better is having that opportunity to think in an open-ended way and a deep way about the subject will make you much more incisive.
00:21:50 Prof Alan Bogg
As somebody making change happen in the world.
00:21:54 Ruby Lott-Lavigna
And just finally, how do?
00:21:56 Ruby Lott-Lavigna
You feel about the future of of workers.
00:21:58 Ruby Lott-Lavigna
Rights and employment law.
00:22:00 Ruby Lott-Lavigna
Does your research ever make you feel negative about where we currently are or offer positivity by way of opening doors and solving problems?
00:22:07 Prof Alan Bogg
So I think there’s no space really or time to be negative now, it doesn’t help anybody. People in my position are in a privileged position and it’s incumbent.
00:22:20 Prof Alan Bogg
Upon us to use our learning and our privilege to go away, think about the subject, think about how to make things better, whether that’s through legislatures, or whether that’s through the courts.
00:22:34 Prof Alan Bogg
I think it’s understanding the limits of what can be achieved. I think one of the lessons that I learned from P&O is that change for the better isn’t an intellectual exercise. Often I could tell a group of politicians what would make an ideal piece of legislation that isn’t necessarily gonna happen.
00:22:55 Prof Alan Bogg
In practice.
00:22:56 Prof Alan Bogg
But you can make change happen in small ways incrementally step by step and I think over my time as an academic, whilst there have been very negative changes in the labour market, I can also point to incremental changes for the better.
00:23:16 Prof Alan Bogg
In the case law and in small pieces of legislative change, so never give up the world is there. It’s waiting for you to make an imprint on it.
00:23:27 Ruby Lott-Lavigna
That’s very inspiring. I’m sure to any students testing or future students. And Stuart, maybe just finished on your advice. Do you have any for students thinking of studying?
00:23:36 Ruby Lott-Lavigna
On this course.
00:23:37 Stuart Hurst
I think I’ve got 2 main pieces of advice. First of all, get a Twitter account, a lot of employment law academics are on Twitter. They post a lot of valuable stuff there. And then second of all, probably do the research into the courses into the institutions. If it’s something you wanna do, go for it. You’re gonna get the things he did. Do you gonna get the things you didn’t?
00:23:55 Stuart Hurst
To like make sure you do like I said, make change like. You can only make change by doing so just.
00:24:00 Ruby Lott-Lavigna
Do great, Alan and Stuart, thank you so much for your time and such an inspiring conversation. It’s been fascinating to chat with you. So thank you for sharing your time and knowledge with us. Thanks, guys. That was great.
00:24:13 Ruby Lott-Lavigna
Thank you for listening to research.
00:24:14 Ruby Lott-Lavigna
Letters from Bristol University. We hope you found inspiration, information, answers and more in all of these great conversations.
00:24:21 Ruby Lott-Lavigna
Don’t forget to check in over at www.bristol.ac.uk/study/postgraduate for more details on Bristol courses and information about Bristol University. Also keep the podcast nearby, subscribe to research frontiers wherever you get your favorite podcasts, and please do share with people who might benefit to you. Thank you for listening to research frontiers.
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