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'Capright': Resources, Rights and Capabilities in Europe

Aims & objectives

This project was funded by the Sixth Research and Development Programme of the EU and coordinated by the IDHE-Cachan unit, based near Paris. The main contribution of the CBR has been to undertake a series of case studies of employee information and consultation mechanisms in the context of corporate restructuring. The members of the CBR team have also carried out work on the impact of transnational economic integration on the operation of labour standards at national and sectoral level, including an analysis of the law and practice relating to local labour clauses, and have worked on developing the theoretical framework for the project, which draws on capability theory. The empirical parts of the project were completed in 2010 and the project concluded in 2011.

Results & dissemination

A major initial focus on the research was on the lessons to be drawn from the construction of the new Terminal 5 building at Heathrow airport. The work built on a theoretical framework which stresses 'internalist' approaches to learning and governance based on the importance of communicative processes, dialogue and deliberation. Material drawn from an in-depth case study on the construction T5 was deployed to examine the development and impact of learning both within and between the subsystems of corporate governance, utilities regulation, multi-firm contracting and industrial relations in large construction projects. T5 took around 20 years to plan and build and started operations in March 2008, six years after construction started. Its opening was marked by confusion and controversy, but as a construction project, however, T5 was highly successful. It was based on a novel approach to risk-sharing between client and suppliers and it incorporated innovative mechanisms for dialogue and monitoring between the actors involved, that is, the client, BAA, the contractors on the construction and engineering sides of the project, and trade unions representing the groups of workers involved. There is evidence that these arrangements contributed positively to a number of successful project outcomes, above all the completion of the construction work on time and on budget, an above-industry health and safety record, and virtually no time lost to disputes. The case of Terminal 5 demonstrates how attempts to build a 'systemic' approach to the project revolved around the interactions between a wide range of actors and processes and beyond the contractual arrangements. However, case shows that in the absence of mechanisms of structural coupling between different subsystems, the capacity for adaptation along the lines of a dynamic learning model is reduced. Although the difficulties surrounding the opening of T5 in March 2008 were unconnected to the construction of the new Terminal, the wider future of the institutional mechanism used to promote cooperation and risk-sharing in the construction project is in doubt, in part because the model it embodies was not taken up for the 2012 London Olympics.

Building on the T5 study, a wider set of case studies was then undertaken, looking at the role of employee consultation arrangements in corporate restructuring, as influenced by the implementation of the Directive 2002/14/EC through the UK Information and Consultation (I&C) Regulations 2004. A qualitative case study approach was adopted with a view to examining changes in companies where I&C arrangements were introduced or existing structures amended in light of the I&C Regulations. Case studies were conducted in companies operating in the financial services, business services, voluntary, chemical and retail sectors of the UK economy. The study involved data collection based on a combination of semi-structured interviews with key actors (i.e. senior and human resource managers, employee representatives, and trade union representatives and officials), non-participant observation of meetings between management and labour (where possible), and analysis of relevant documentary material, such as I&C agreements, minutes of meetings, documents disseminated to the workforce and trade union statements and communications. The objective was to highlight the influence of the form and content of the implementing legislation on the development of social dialogue procedures. The capability approach was used to draw attention to the relationship between the legal-institutional framework and the development of the 'opportunity' and 'process' aspects of the 'capability for voice' of the I&C arrangements. Over 70 interviews were carried out as part of this work, which was completed in 2010.

We found that in almost all cases where I&C arrangements were involved in restructuring, decisions to proceed to restructuring were made by management acting unilaterally. Consultation with employee representatives was confined to the process of handling job losses. I&C arrangements were not seen by management as having a role in strategic decision-making. In most cases, the formal announcement of management proposals for restructuring also marked the start of the consultation process, excluding any possibility for consultation to take place at a point when proposals were still at a formative stage. Employee representatives described the outcomes of consultation as ranging from 'mutually acceptable' arrangements, through 'acceptance of the inevitable', to a feeling among employees that 'managerial prerogative has been imposed on them.' Opportunities for employee representatives to open up new areas of social dialogue with management on an on-going basis were limited. As a result of the denial of a preferred role for trade unions within the I&C Regulations, possibilities for creating 'thick interactions' between the union channel and the newly created universal channel of employee representation were significantly constrained. Where trade unions had previously had an established role in discussions with management, I&C arrangements tended to adopt the unions' approach towards the restructuring. In only a few cases had the introduction or amendment of I&C arrangements enabled unions to address a broader agenda than previously.

Journal articles

Barnard, C. (2009) '"British jobs for British workers": the Lindsey Oil Refinery dispute and the future of local labour clauses in an integrated EU market' Industrial Law Journal, 38: 245-77.

Barnard, C. (2011) '"British jobs for British workers"': the Lindsey Oil Refinery dispute', L'Homme et la Société, forthcoming. 

Deakin, S. (2006) '"Capacitas": contract law and the institutional preconditions of a market economy' European Review of Contract Law, 2: 317-341. 

Deakin, S. (2007) 'Does the "personal employment contract" provide a basis for the reunification of labour law?' Industrial Law Journal, 36: 68-83. 

Deakin, S. (2007) 'Restructurations et gouvernance d'enterprise en Grande Bretagne: la vente de Rover' Travail et emploi, no. 109, janvier-mars 2007, 51-58. 

Deakin, S. and Randall, J. (2009) 'Rethinking the economic torts', Modern Law Review, 72: 519-553. 

Deakin, S. and Wilkinson, F. (2007) 'Labour law, competitiveness and social rights: on recent theoretical contributions in British labour law scholarship', Rodo Horitsu Jyunpo (bi-weekly Journal of Labour Law, Japan). 

Deakin, S. and Green, F. (2009) 'One hundred years of British minimum wage legislation' British Journal of Industrial Relations, 47: 205-13. 

Deakin, S. and Wilkinson, F. (2011) 'Labour markets, financial crisis and regulatory reform: the emerging agenda for labour law', L'Homme et la Société, forthcoming. 

Deakin, S. and Koukiadaki, A. (2009) 'Governance processes, labour-management partnership and employee voice in the construction of Heathrow Terminal 5' Industrial Law Journal, 38: 365-389. 

Koukiadaki, A. (2009) 'The reformulation of EC-level employee consultation norms in the British system of national labour law and industrial relations, International Journal of Law in Context, 5: 393-416. 

Koukiadaki, A. (2009) 'The establishment and operation of information and consultation arrangements in a capability-based framework', Economic and Industrial Democracy, 31: 365-388. 

Koukiadaki, A. (2009) 'Le travail intérimaire en Grèce', Revue du Droit de Travail, 2: 130-132. 

Koukiadaki, A. (2009) 'Case law developments in the area of fixed-term work', Industrial Law Journal, 38 (1): 89-100. 

Koukiadaki, A. (2009) 'I senior managers nel diritto del lavoro inglese', Diritto delle Relazioni Industriali, 1: 17-35. 

Koukiadaki, A. (2009) 'La transposition de la Directive Cadre 2002/14 au Royaume-Uni et l'héritage du "voluntarisme"', Revue du Droit de Travail, 7/8: 472-475.

Book chapters

Barnard, C. and Deakin, S. (2010) 'Social policy and labour market regulation', in A. Menon, E. Jones and S. Weatherill (eds) Oxford Handbook on European Union Law (Oxford, Oxford University Press, forthcoming). 

Barnard, C. and Deakin, S. (2010) 'European labour law after Laval', in U. Ilasiuk (ed.) Before and After the Economic Crisis: What Implications for the 'European Social Model'? (Cheltenham: Edward Elgar, forthcoming). 

Deakin, S. (2006), 'The comparative evolution of the employment relationship', in G. Davidov and B. Langille (eds.) Boundaries and Frontiers of Labour Law, Oxford: Hart, 89-108. 

Deakin, S. (2009) 'Capacitas: contract law, capabilities, and the legal foundations of the market', in S. Deakin and A. Supiot (eds) Capacitas: Contract Law and the Institutional Preconditions of a Market Economy (Oxford: Hart Publishing). 

Deakin, S. and Koukiadaki, A. (2010) 'Reflexive approaches to corporate governance: the case of Heathrow Terminal 5', in J. Lenoble and O. De Schutter (eds.) Reflexive Governance: Redefining the Public Interest in a Pluralistic World (Oxford: Hart Publishing). 

Deakin, S. and Koukiadaki, A. (2010) 'Les procédures d'information-consultation des salariés face aux restructurations en Grande-Bretagne', in C. Didry, and A. Jobert, (eds) L'Entreprise en Restructuration, Dynamiques Institutionnelles et Mobilisations Collectives (Rennes: PUR). 

Deakin, S. and Wilkinson, F. (2009) 'Minimum wage legislation', in K. Dau-Schmidt, S. Harris and O. Lobel (eds) Labor and Employment Law and Economics (Cheltenham: Edward Elgar). 

Koukiadaki, A.(2009) 'The Position and Function of executive staff members in British labour law', in Bromwich, M. Gschwinder, J., Kronisch, G., Seifert, A. and Weiss, M. (eds) Labour Law of Executive Staff in Selected Countries (Baden-Baden: Nomos Verlagsgesellschaft) 

Koukiadaki, A. (2010) 'The regulation of fixed-term work in Britain', in R. Blanpain, T. Araki, and H. Nakakubo (eds) Labor Policy on Fixed-term Employment Contracts (Deventer: Kluwer Law International) forthcoming.

Books

Deakin, S. and Morris, G. (2009) Labour Law 5th. ed. (Oxford: Hart Publishing). 

Deakin, S. and Supiot, A. (eds.) Capacitas: Contract Law and the Institutional Preconditions of a Market Economy (Oxford: Hart Publishing).

Working papers

Deakin, S. and Koukiadaki, A. (2009) 'The capability approach and corporate restructuring: UK sectoral and enterprise-based case studies' UK final report, Capright WP5, December 2009. 

Koukiadaki, A. (2010) 'The regulation of fixed-term work in Britain' (2010) Labor Policy on Fixed-term Employment Contracts, JILPT Report no 9. (Tokyo: The Japan Institute for Labour Policy and Training.)

Miscellaneous publications

Koukiadaki, A. (2010) special editor for the French sociological journal L'Homme et la Société, issue entitled 'The Changing Landscape of Industrial Relations in Britain', forthcoming. 

Koukiadaki, A. (2010) 'Informing and Consulting Employees: The VIVO Staff Association', IPA Case Study, no 1, series 5 (London: IPA). 

Koukiadaki, A. (2010) 'Statutory Employee Consultation: Five Years On', IPA Bulletin, May issue. 

Koukiadaki, A. (2010) 'The Implications of the Directive 2002/14/EC in Britain', in Les Cahiers de la Fondation (2009-2010) Impact of the Information and Consultation Directive on Social Dialogue in the Member States: Balance and Perspectives, no 75-76 (Paris: Europe et Société).

Conference/Workshop papers

Barnard, C. (2009) 'Collective bargaining and industrial action in the crisis: the case of the Lindsey Oil Refinery dispute' presentation to Capright conference, Cambridge, September 2009. 

Deakin, S. and Koukiadaki, A. (2008) 'Information and consultation rights and corporate restructuring: preliminary evidence from the UK', Capright Project meeting, SOFI, Goettingen, 24-25 September. 

Deakin, S. and Koukiadaki, A. (2008) 'Les procédures d'information-consultation des salariés face aux restructurations en Grande-Bretagne', Colloque sur les restructurations industrielles entre politiques, droit et relations professionnelles, IDHE (Institutions et Dynamiques Historiques de l'Economie), Paris, October 2008. 

Deakin, S. and Koukiadaki, A. (2009) 'Information and consultation rights and corporate restructuring: evidence from the UK', Capright Project meeting, University of National and World Economy, Sofia, 25 March. 

Deakin, S. and Koukiadaki, A. (2009) 'Systemic deliberation, social dialogue and contractual learning: the case of Terminal 5' presented to RT2 High-level Roundtable, Beyond the Social-Civil Dialogue Dichotomy, European Commission, Brussels, October 2009. 

Deakin, S. and Koukiadaki, A. (2009) 'Systemic deliberation, social dialogue and contractual learning: The case of Terminal 5', 4th AmCham Corporate Governance Workshop, American Chamber of Commerce, Central European University, Budapest, November 2009. 

Deakin, S. and Koukiadaki, A. (2010) 'The capability approach and corporate restructuring: UK sectoral and enterprise-based case studies' presented to Capright WP5 workshop, Brussels, March 2010. 

Deakin, S. and Koukiadaki, A. (2010) 'Reflexive approaches to corporate governance: the case of Heathrow Terminal 5' presented to REFGOV conference, Brussels, May 2010. 

Deakin, S. and Wilkinson, F. (2009) 'Labour markets, the financial crisis, and institutional reform' presentation to Capright conference, Cambridge, September 2009. 

Koukiadaki, A., (2007) The Establishment and Operation of Information and Consultation of Employees Arrangements in the UK: Case Study Evidence, Cornell-Warwick Doctoral Symposium, Industrial and Labour Relations School, Cornell University, Ithaca-May 2007.

Koukiadaki, A. (2009) 'The establishment and operation of information and consultation of employees arrangements in a capability-based framework', Socio-Legal Studies Association conference, De Monfort University, Leicester, 7-9 April. 

Koukiadaki, A. (2009) 'The capability approach and the 2002/14/EC Directive', Capright Summer School: Towards a European Politics of Capability, Venice, 20-23 May. 

Koukiadaki, A. (2009) 'Systemic deliberation and contractual governance: the case of T5', Corporate Governance, REFGOV conference, Cambridge, 24-25 June. 

Koukiadaki, A. (2010) 'The reformulation of EC-level employee consultation norms in Britain', Impact de la Directive Information-consultation sur le Dialogue Social dans les États Membres: Résultats et Perspectives, Europe et Société, Paris, January 2010. 

Koukiadaki, A. (2010) 'The regulation of fixed-term work in Britain: Empirical and case law developments', Norwich Law School Seminar Series, University of East Anglia, Norwich, February 2010. 

Koukiadaki, A. (2010) 'Workers' rights to information, consultation and participation', Annual Conference on European Labour Law, European Academy of Law, Trier, March 2010. 

Koukiadaki, A. (2010) 'Labour policy on fixed-term employment contracts in the UK', 10th JILPT Comparative Labor Law Seminar 'Labor Policy on Fixed-term Employment Contracts', University of Tokyo, March 2010.

Project leader

Simon Deakin

Research fellow

Aristea Koukiadaki

Project dates

2007-2011

Funding

European Union Sixth Framework Programme