2012 has seen a number of significant developments in the field of collective labour relations in the UK, many being the result of the UK government's clear pro-business agenda.
For example, consultation has recently closed on the government's proposals to reform the current rules on collective redundancy consultation, which include:
- a reduction of the current 90 day consultation period for redundancies of 100 or more employees at one establishment to either 30 or 45 days; and
- guidance on the meaning of "establishment".
Recent cases have also shown UK courts adopting a narrow interpretation of "establishment" which is not entirely consistent with EU authorities. In Renfrewshire Council -v -The Educational Institute of Scotland for example, the Employment Appeal Tribunal had no problem in finding that a single school could constitute an establishment, rather than the local council which employed teachers across a number of schools.
Changes to the current rules are expected in Spring 2013.
This year has also seen a "Call for Evidence" on the effectiveness of the Transfer of Undertakings (Protection of Employment) Regulations 2006, ("TUPE").
The government asked for views on issues such as the impact of "service provision changes", ("SPC's"), and the difficulties in seeking to harmonise terms and conditions of employment post-transfer. A full consultation on specific proposals to amend TUPE is awaited.
Interestingly in view of the government's concerns, the trend of UK courts has been to narrow the scope of an SPC. We have seen a number of examples of transactions which have not met the SPC test. For example, in Seawell Ltd -v- Ceva Freight (UK) Ltd the Employment Appeal Tribunal held that there was no SPC upon the transfer of a client contract even though an employee had spent all of his time working under that contract. The EAT held that in the absence of a deliberately organised grouping of employees, dedicated to that client, there could not be an SPC.
Finally, government statistics for 2012 indicate that the steady decline in industrial action in the UK over the last few years is over. Indeed, the latest Trade Union Congress suggests that 2013 may see calls for a general strike, not seen in the UK since 1926.
Applications for injunctions to prevent industrial action during 2012 have shown the UK courts unwilling to accept overly technical arguments by employers or to require unions to comply with unduly onerous requirements, for example in relation to the statutory balloting procedures, ( see Balfour Beatty Engineering Services Ltd -v- Unite). However, the most recent case of Metroline -v Unite illustrates that injunctions will still be granted in appropriate cases. Here, the union's ballot notice did not contain sufficient detail of the categories and numbers of employees balloted, or the work places at which industrial action was to take place, such that the employer was unable properly to prepare for the industrial action.
There have been calls for a tightening of the rules to make it harder for unions to call a strike unless they have widespread workforce support. However there are no proposals at the present time. Meanwhile the unions claim that the rules are too restrictive, and are challenging current UK legislation in the European Court of Human Rights.