Employee Relations in the Public Services: Themes and Issues

By Susan Corby; Geoff White | Go to book overview

3


The legal context

Public or private?

Sandra Fredman

The transformation of the public services during the Thatcher and Major years had, as its central motif, the belief that, while ‘public’ was good, ‘private’ was better. Most of the changes of the period were therefore aimed at reshaping the public sector in the image of the private, complete with markets, consumers, contracts and profit incentives. For public sector employees the changes have been fundamental. Central to the project of ‘rolling back the state’ was a commitment to reducing the number of public sector employees, a commitment systematically put into effect. The overall drop in numbers from 7.4 million in 1979 to 5.2 million in 1996 (Safford and MacGregor 1997) demonstrates that, for many, the changes have meant redundancy or the transfer of their employment relationship to the more precarious private sector. This raises the central question to be addressed in this chapter: to what extent have these intensely political developments been reflected in the law governing the state as employer? Has the legal framework changed to resemble more closely that of the private sector, or have the changes instead created a new public employment law?

This chapter argues that the importation of private law concepts has not made public employment indistinguishable from that in the private sector. As Freedland has powerfully argued, the result of two decades of change has been to create a different kind of public sector rather than a new distribution between public and private (Freedland 1997). This is reflected in the legal framework: instead of privatising the legal framework, newly introduced private law elements have themselves been reshaped by the forces of public law, creating a new form of public employment. This argument is elaborated in three parts: first by considering changes in the employment relationship, particularly those in the civil service; second, by examining the interaction between constitutional law and the private sector ethic; and finally by describing the influence of EU law, which has endorsed the distinctive public law position of public employees. This approach is likely to be further reinforced when the Human Rights Bill, incorporating the European Convention on Human Rights, becomes law.

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Employee Relations in the Public Services: Themes and Issues
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • List of Figures and Tables vii
  • Part I - Introduction 1
  • 1 - From the New Right to New Labour 3
  • Part II - Context 27
  • 2 - The Economic and Financial Context 29
  • References 51
  • 3 - The Legal Context 53
  • Part III - Issues 71
  • 4 - The Remuneration of Public Servants 73
  • References 92
  • 5 - Equal Opportunities 95
  • 6 - Employment Flexibility 114
  • 7 - Tendering and Outsourcing 136
  • 8 - Quality Management 156
  • Part IV - Players 175
  • 9 - Personnel Managers 177
  • References 195
  • 10 - Trade Unions 199
  • References 221
  • Index 225
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