Welcome to our December UK labour law quarterly update. This edition contains the following content:
UK labour law news
UK labour case law update
Trade Union Act implementation: new regulations and Codes of Practice
The Trade Union Act 2016 changes the rules governing industrial action ballots by introducing a new 50% threshold for voter turnout, with an additional 40% support threshold applying only in important public services (certain services in the health, education, fire, transport, nuclear decommissioning and border security sectors).
The Government has published final draft regulations which specify in more detail which public services are subject to the 40% ballot support threshold. The provisions in respect of education are set out in the Important Public Services (Education) Regulations 2017. These state that important public services constitute teaching and other services provided by teachers and head-teachers for children of compulsory school age at a school, a 16-19 Academy or a further education institution. Fee-paying schools and further education institutions, where the majority of compulsory school age pupils are funded by individuals, are excluded. The regulations, which must be approved by Parliament, come into force on 1 March 2017, or, if Parliament has not approved them by that time, 21 days after approval.
At the time of writing, the remaining workplace changes in the Trade Union Act, including the 50% threshold, have not been implemented. However, two revised Codes of Practice (on Industrial action ballots and notice to employers and on Picketing) have been published in readiness for the implementation of other industrial action provisions in the Act.
Meanwhile, we await the next move by the Welsh Assembly reflecting an earlier announcement that Welsh legislation will be brought forward to repeal sections of the Act related to devolved areas in Wales. Finally, this might not be the last word on industrial action legal changes, given the current high profile strikes and reports in the media that the Government may be open to further restrictions.
The gig economy: ‘self-employed’ seek trade union recognition, plus wildcat strikes
Trade union recognition and the gig economy
The Central Arbitration Committee (CAC) has received a statutory recognition application from the Independent Workers Union of Great Britain (IWGB) on behalf of a group of Deliveroo riders in north London. The riders are classified by Deliveroo as self-employed contractors. As a result, the CAC is expected to consider whether the riders are, in fact, ‘workers’, as defined by the Trade Union Labour Relations (Consolidation) Act 1992, and therefore entitled to apply for statutory recognition.
It has been reported that IWGB regards this move as a back-door way to establish worker status, echoing the recent Uber litigation. However, even if they are successful in arguing for worker status before the CAC, this approach is not without complications given that the definition of ‘worker’ is slightly different under TULRCA when compared to other key legislation (minimum wage, working time etc). In addition, producing the evidence necessary to proceed with the statutory recognition application may be practically challenging for a small union when faced with the prescriptive recognition process coupled with a fluid gig environment (for example, defining the bargaining unit and demonstrating a minimum 10% union membership and that the majority of workers are likely to favour recognition, all within the CAC’s time scales).
Wildcat strikes and the gig economy
Separately, it has been reported that IWGB members have been using internet messaging apps to co-ordinate wildcat strikes among fellow gig employees, for example, against Deliveroo over the summer. Jason Moyer-Lee, the general secretary, has been quoted as saying that, if they are self-employed contractors as companies contend, then the companies have no “legal recourse” (industrial action rights and responsibilities being aimed at workers and their employers, not contractors). However, the flip side of that argument is that some companies may feel unconstrained by the usual strike-related dismissal protections when responding to these wildcat protests. This raises questions around the level of protection, in relation to strikes, for both businesses and those working in the gig economy. One hopes that the Government’s review into new working practices will consider these new and challenging issues.
Review into electronic voting for industrial action ballots commences
As part of the political deal-making to ensure the Trade Union Act’s passage through Parliament, the government agreed, reluctantly, to commission a review into electronic voting for strike ballots. It was a requirement that this was launched within six months of the Act receiving royal assent, hence the commencement in November of the review which will investigate, amongst other things, the following: risks of interception, impersonation, hacking, fraud or misleading or irregular practices associated with electronic balloting; risks of intimidation of union members and loss of anonymity; security and resilience of existing practices of balloting union members. The review is due to report before December 2017. The government must publish its response but is not required to accept the findings.
Unite general secretary election: April 2017
Len McCluskey, the general secretary of Unite, has triggered a leadership contest by giving notice of his resignation while also standing for a third term in next April’s election. He had been expected to stand down at the end of his current term in 2018, but, if he wins in April, Mr McCluskey would still be in post at the next general election in 2020.
A long-standing Unite regional secretary, Gerard Coyne, has announced that he will challenge Mr McCluskey in the election. He is concerned that Unite is focusing on politics to the detriment of its members’ pay and conditions. According to the FT, Mr Coyne stated that Unite members ‘care about pay and conditions at work and their job security — not who is up or down in the Westminster game of snakes and ladders’.
UK labour case law update
Unite the Union v Nailard
This case concerns sexual harassment by two Unite full time workplace officials (employed by the workplace employer, not Unite) against a Unite officer (employed by Unite). A key question decided by the EAT concerned whether Unite could be vicariously liable for the discriminatory acts of the officials, given that the EAT accepted that they were not employed by the union. It held that the two officials were agents of the union and as such Unite could be liable for their behaviour. This case could assist employers where a union is failing to respond to concerns over officials exhibiting potentially discriminatory behaviour. In such circumstances, the risk of vicarious liability should focus the union’s attention on a more appropriate response.