UK labour law news
The Government’s Trade Union Bill – what next?
The Queen’s Speech confirmed that strike law reform is a priority for the 2015/16 session of Parliament. In July, the Government is expected to publish the Trade Union Bill which will introduce a 50% voting threshold for union ballots turnouts (and retain the requirement for there to be a simple majority of votes in favour) and an additional requirement that 40% of those entitled to vote must vote in favour of industrial action in certain essential public services (health, education, fire, transport). The Bill may also contain measures to fulfil its promise to “tackle intimidation of non-striking workers during a strike”. Time limits on the mandate following a strike ballot and changes permitting employers to hire agency staff to provide essential cover during strikes are also expected. Reforming the role of the Certification Officer has been mentioned, although details are awaited, and an opt-in process for the political fund element of trade unions subscriptions will be introduced. Given the Parliamentary timetable, the Bill is not expected to be implemented until next year.
Business polls have backed the Government’s strike law reforms and our own survey found 62% support for change, with overwhelming support for tighter rules in essential services. Trade unions oppose the proposals with some, including Unison’s Dave Prentis, indicating that they will challenge the reforms in the courts (for example, alleging a restriction on their right to strike contrary to the European Convention on Human Rights) and may even flout the rules and conduct unlawful strikes. Trade unions are warning that stricter strike rules will encourage alternative forms of protest such as wildcat strikes or the type of tactics pursued by Unite’s Leverage campaign (for example, involving flashmobs, online campaigns and demonstrations aimed at shareholders, customers, employees and suppliers of the employer). In a similar vein, the TUC is seeking to harness new community and customer campaigns, such as those opposing the closure of local shops and services, to increase the pressure on employers where strike options may be limited.
EU consultation on changing collective consultation law
Over the next few days, the EU Commission’s consultation on strengthening existing EU legislation on worker information and consultation will close. Three Directives (the TUPE, collective redundancies and information and consultation of workers Directives) are under scrutiny following an earlier review which highlighted some shortcomings and gaps in the definitions of 'information' and 'consultation' across the Directives. Of particular concern to employers is a proposal to introduce stricter obligations to inform and consult by adopting those definitions found in the EWC Directive. Such a move could result in delays to business restructuring and other business change, as well as the potential for more litigation and an increased risk of leaks of market sensitive confidential information. Read our briefing for further detail.
The latest trade union membership statistics
The Government has published the latest trade union membership statistics. The proportion of employees who were trade union members fell slightly to 25%, from 25.6% in 2013. Trade union membership among private sector employees stood at 14.2% and in the public sector it was 54.3%. The decrease in public sector membership was partially overset by a small rise in the private sector - a rise for a fourth successive year. As with previous years, female employees are more likely to be a trade union member and older workers account for a larger proportion of union members than younger workers. Read the statistics here.
UK labour case law update
EIH Educational Foundation v Morris – triggering redundancy consultation
Due to declining pupil numbers, the governors of a school decided to close and dismiss the staff on grounds of redundancy. They did not consult employee representatives about the proposed redundancies prior to giving them notice of dismissal. Twenty-four employees claimed a protective award, given the failure to consult.
The tribunal had to decide when the duty to consult arose. The trigger for consultation is a ‘proposal’ to dismiss as redundant 20 or more employees, but, how certain must the ‘proposal’ be in practice? Case law has variously described a proposal as ‘more than a possibility’, ‘when it is fixed as a clear, albeit, provisional intention that dismissals will occur’ and ‘when strategic decisions on changes have been adopted … compelling the employer to contemplate or to plan for collective redundancies’. In this case, the tribunal and the EAT agreed that the governor’s earlier decision in February to close the school in April unless numbers improved, and not the actual decision to close taken in April, amounted to a proposal to dismiss - triggering the duty to consult in February. This case serves as a reminder that consultation may be triggered earlier than some employers anticipate and, as the tribunal noted in this case, ignorance of the law is not a defence.
USDAW v Ethel Austin and others – the compliance of British redundancy law
The Court of Justice of the EU confirmed that British redundancy law complies with the relevant EU Directive. This means that the threshold which triggers collective redundancy consultation obligations should be at least 20 employees from a particular establishment within a period of 90 days, not 20 employees across the whole employer. The Court also reiterated that an ‘establishment’ is the entity to which the workers made redundant are assigned to carry out their duties and this will depend on the factual circumstances. Read our briefing for further detail.
Hartley and others v King Edward VI College – withholding pay from strikers
An employer may withhold pay from striking workers relying on the principle that they are not entitled to be paid if they are not ready and willing to perform the work they are employed to do. This Court of Appeal case concerns how much can be lawfully withheld for a day's strike by salaried employees. Here, the college withheld 1/260 of their annual salary because teachers' working days were Monday to Friday (i.e. 5 x 52 weeks = 260 working days); the claimants argued the correct amount was 1/365 (i.e. their salary accrued equally day by day). Their contracts of employment did not expressly address the amount to be withheld. The Court upheld 1/260, based on an interpretation of the contractual arrangements. The case also provided a long-awaited opportunity for a higher court to consider how the law, which dates from 1870, applies to today’s workplaces. The Court’s reasoning does not deliver unequivocal guidance in that the construction of a particular contract of employment will remain a factor in deciding the amount of pay to be withheld for a day’s strike. However, it does makes it easier for employers to base the amount on the total working days per year, not on equal daily accrual (1/365).
Edwards and another v Encirc Ltd – union/H&S meetings and working time
The EAT was asked whether attending workplace meetings in the capacity of a representative of a recognised trade union or health and safety representative constituted ‘working time’ under the Working Time Regulations. A positive response has wider implications for the 48 hour week, night work and rest breaks. The EAT confirmed that such meetings could be ‘working time’, for example, if the activities were, in the broader sense, for the benefit of the employer, arose from the employment relationship and carried out with the employer’s knowledge at an approved time and place. Note, this case does not apply to employees/union members attending such meetings – just a shop steward and an appointed health and safety representative.