Much has been written about Kahn-Freund’s theory of collective laissez-faire. Recently, Bogg revisited the question of the usefulness of this theory in aiding our understanding of the United Kingdom’s labour law and assessed the validity of the main critiques of collective laissez-faire, namely the abstentionist, neutrality and coherence critiques. 1 He concluded that each of these critiques is somewhat misplaced and that ‘collective laissez-faire still offers the most compelling theoretical rationalisation of the pattern of auxiliary intervention in the post-war period’. 2 In accepting this proposition I wish to explore a slightly different question: does the theory of collective laissez-faire help explain what Collins describes as the ‘apparent tardiness’ of the United Kingdom’s unfair dismissal system? 3 Or said differently, did the commitment of successive governments to voluntarism in industrial relations and the promotion of collective bargaining delay the development of unfair dismissal protection for employees? Up until 1971 when statutory unfair dismissal protection was introduced, it was thought that the perceived lack of protection for individual employees was best remedied through the voluntary development of procedures within industries and workplaces rather than through providing individual employees with statutory rights. This delay can be largely attributed to the significant influence of the voluntarist tradition upon British industrial relations. As Wedderburn observes:
Legal enactment has not been the modern method. Voluntary collective bargaining has developed in a system which owes very little to the law, which is covered by very few judicial decisions because it has rarely been brought into any court, and which is controlled by statute very little, if at all. In other countries with comparable economic systems (such as the United States, France, Australia, Sweden, West Germany) the ‘collective agreement’ and the process which produces it are closely regulated by legal sanction. 4
theory, has had a significant impact upon the evolution of statutory unfair dismissal laws in the United Kingdom, as we will see in this chapter.