UK labour law news

Trade Union Act: the latest news

Despite receiving Royal Assent on 4 May, the Trade Union Act has yet to be implemented. Instead, we expect to see piecemeal implementation with many provisions requiring secondary legislation before coming into force.

The indications are that the industrial action measures (including new ballot thresholds, tighter supervision of picketing, longer advance notice of strikes, changes to the ballot paper and the re-balloting of ongoing disputes) will be implemented first, possibly before the end of this year, with new regulations and guidance providing further information on the ‘important public services’ ballot threshold. Changes to public sector check-off arrangements and facility time reporting will be delayed until 2017 or 2018. In addition, the review of electronic balloting for strike ballots should commence within the next month or so (to meet the Act’s November deadline). Read our briefing on the Act’s changes.

Meanwhile, Welsh Assembly opposition to the Act continues. The Welsh First Minister confirmed that legislation will be brought forward to repeal sections of the Act related to devolved areas and a recent consultation is seeking views on maintaining the status quo in relation to Welsh public services, should the UK Government rescind the ban on using agency workers to backfill during industrial action. This clash has the potential to result in litigation, should both sides continue to take contrary views on the limits of devolution.

Unite publishes a new pay campaigning toolkit and strategy

Unite has produced a pay campaigning toolkit (‘Work, Voice, Pay’) for shop stewards which includes a series of guides, template agreements and, for the first time, access to the latest pay and anniversary data. The guides set out step-by-step advice on researching and planning pay claims, on building membership and profile and dealing with ‘hostile’ employers. By sharing pay and anniversary data, the aim is to build leverage, for example, by aligning pay anniversaries and checking pay settlements elsewhere: for the same employer, region or sector.

The ‘gig’ economy, other contingent workers and trade union campaigns

Contrary to the view that trade unions struggle to organise those working flexibly, temporarily or even ostensibly on a self-employed basis, we have seen both established trade unions and new trade unions actively campaigning in this area over recent months. For example, Unite is part of the current Sports Direct working practices campaign and the GMB has brought a test case, on worker status, against Uber. In addition, some small trade unions have emerged, for example, the Independent Workers Union is backing another worker status test case involving cycle couriers. Other new unions, such as Cleaners and Allied Independent Workers Union and United Voices of the World are championing ‘grassroots’ unionism aimed at typically low-paid, outsourced activities such as security and cleaning services in London.

Employers should be aware of these emerging developments, given the appetite of existing unions to challenge the changing world of work even where their membership might not be strong and for new unions to deploy reputational and protest campaigns, sometimes aggressively, to assert their demands for contingent or low-paid workers.

Low levels of industrial action during 2015 confirmed by the ONS

The number of working days lost due to labour disputes in 2015 was, according to the ONS, 170,000 compared with 788,000 in 2014 (this higher figure reflected a number of large scale public sector strikes). The 2015 figure was the second lowest annual total since records began in 1891. Unsurprisingly, pay was the principal cause of labour disputes in 2015 – as it has been for the last five years. Read the ONS report here.

BECTU, the media and entertainment trade union, to merge with Prospect

BECTU members have voted in favour of a merger with Prospect, the union for public and private sector professionals. The merger will come into effect on 1 January 2017 and was motivated by a long-standing deficit in the BECTU staff pension scheme. In the new union, BECTU will retain its own identity and its own website.

UK labour case law update

R on the application of Lidl UK v GMB: a step towards small, fragmented bargaining units?

This High Court judicial review upholds a decision by the Central Arbitration Committee (CAC) on the ‘appropriate bargaining unit’ in a statutory recognition application and is most relevant for employers with dispersed business units such as shops, distribution centres and other regional locations.

The High Court confirmed that the CAC acted correctly when it rejected Lidl’s concerns about the adverse impact of recognition for a small number of employees, based at a single site, on its low-cost, standardised “One Lidl” business model. Lidl in the UK does not currently recognise any trade union for collective bargaining. While legal precedent existed for the approach taken by the CAC, this decision makes it potentially harder for employers to argue against single site bargaining units. It underlines the importance of thorough preparation when appearing before the CAC, as well as the importance of strong and positive employee engagement at a local level.

R (Boots MS Ltd) v CAC and others: challenging union ‘sweetheart’ deals

In November the Court of Appeal is expected to consider the High Court’s decision that ‘sweetheart’ deals with non-independent trade unions can act to block a trade union’s statutory recognition application. The appeal is expected to argue that the relevant legislation is incompatible with the European Convention of Human Rights.

BALPA v Ltd: the scope of statutory recognition

Also expected in November, before the Court of Appeal, is BALPA’s appeal on the scope of the specified method under statutory recognition. In a statutory recognition application, where the parties fail to reach agreement about the method by which collective bargaining is to be carried out, the CAC decides the method: the so-called ‘specified method’. This is the subject of the appeal, specifically, whether some rostering arrangements and direct communications with employees fall within its scope.