UK labour law news
Royal Assent for new Act which introduces trade union membership audit duty
The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 amends TULRCA’s existing section 24 which requires trade unions to maintain an accurate and up-to-date register of members – so far as reasonably practicable. In particular, the Act will require unions to send, annually, to the Certification Officer (CO) a membership audit certificate. Where the trade union has up to 10,000 members, it may self-certify that it has complied with its section 24 duties. Larger unions must appoint a qualified independent person to certify that the trade union's system for compiling and maintaining the register are satisfactory for the purposes of complying with section 24. The Act also contains new related investigatory and enforcement powers for the CO.
Trade unions lobbied against the new audit duty, voicing concerns over extra cost and red-tape, as well as data protection and privacy issues surrounding the disclosure of membership data to assurers and potentially the CO. There are some suggestions of a challenge based on human rights law. Whether, when implemented, the Act will have wider impact remains to be seen, although there is clearly an overlap between the TULRCA duty to maintain an accurate register of members and the strike ballot and notice duties which require a degree of accuracy over identifying those members affected by a potential strike. However, it should be remembered that these duties are not absolute and provide for a margin of error by the trade unions, for example, applying a reasonableness test.
Government trade union disputes review changes course
Following reports of alleged union intimidation of managers during last year’s Grangemouth dispute, the Government announced a review of industrial disputes and the law. The review was expected to “examine whether the law needs to be tightened up to prevent intimidation and harassment”. However, the apparent reluctance of both sides of industry to get involved in the review has, according to a recent report in the FT, led to a change of course. According to the FT, the terms of reference for the review have now been agreed and it is expected to consider whether trade union laws are fit for purpose.
Strike law reform and essential services: what do other countries do?
The London tube strikes in January led again to calls for a reform of UK strike laws reflecting, in part, the low turnout for some RMT and other strikes over recent years. For example, Boris Johnson repeated his wish for a ballot participation threshold, “so that at least 50 per cent of the relevant workforce has to take the trouble to vote, or else the ballot is void.” The CBI has been calling for a requirement that at least 40 per cent of balloted members vote in favour of strikes, while the IOD has said it would support a change to require strikes to be supported by a majority of those balloted.
While the above proposals are not new, recent media reports that the next Conservative Party manifesto could promise to class the London Underground as an "essential service", with a view to agreeing minimum service levels to be maintained during a strike, are. Currently, a ban or a restriction on the right to strike is used narrowly in the UK, for example, in the armed forces and the police. This contrasts with some European countries and internationally where restrictions on the right to strike in essential services are more common.
Such restrictions range from a complete ban on strikes, to agreements to maintain minimum service levels throughout the strike. Unsurprisingly, a ban is used sparingly, for example, where disruption would endanger life or security. In contrast, minimum service level agreements are regarded as a potentially proportionate way of balancing the right to strike with the disruption it causes to essential services. Other restrictions may also apply, for example, a longer notice period before a strike can commence, compulsory participation in conciliation in the period before any strike, a maximum strike duration and restrictions on the intervals between strikes.
What constitutes an “essential service” differs by country, but typically includes utilities, emergency services, air traffic control, mass public transport, healthcare and may include parts of the communication, education, finance and public administration sectors.
TUC calls for cross-border synchronised union action
As trade unions continue to seek ways to reverse the long term decline in membership, the TUC has been looking outside the UK for support. Speaking at a German conference in March, the TUC General Secretary Frances O’Grady urged stronger links between trade union members in Britain and Germany saying that trade unions must “explore the scope for synchronised union action, politically and organisationally.”
Frances O’Grady’s call is reflected in the experience of our industrial action experts. We are already seeing more instances of trade unions collaborating across borders, including cross-border secondary (solidarity) action, as well as a growing trend for trade union disputes involving international, not just national, issues. Given the many differences between laws regulating strike action across Europe, we have prepared a European Guide to Industrial Action to help employers to deal with potentially complex cross-border disputes.
UK labour case law update
USDAW v Ethel Austin Ltd (in administration) and another case
Also known as the Woolworths litigation, the Court of Appeal in January referred the case to the European Court of Justice (ECJ). In summary, the Court is expected to ask for clarification of the EU Collective Redundancies Directive, including the meaning of “establishments” as used in the Directive. This follows the EAT’s decision that British law was in conflict with EU law in that it limits the 20 employee trigger for collective redundancy consultation to one establishment, whereas the Directive does not (in the EAT’s view). Unfortunately, it will be many months before the ECJ’s decision will be available.
R (on the application of Boots Management Services Ltd) v CAC and PDAU
The PDAU applied to the CAC seeking statutory recognition in respect of a group of pharmacists. BMS Ltd argued that the CAC should not accept the application as it had already an established relationship with another trade union, the BPA. Because of this, BMS Ltd argued, the TULRCA legislation acted to block the application. The CAC found that the collective agreement with the BPA did not extend to collective bargaining and to allow such an agreement to block the PDAU’s application was contrary to Article 11 of the European Convention of Human Rights. The CAC added words to TULRCA to permit PDAU’s application to proceed.
BMS Ltd brought a judicial review of the CAC’s decision. The High Court agreed with the CAC that TULRCA was incompatible but decided that it had gone too far in rewriting TULRCA. Instead, the Court said it could declare the provision incompatible leaving it to Parliament to amend the wording. This means that the current wording of TULRCA stands until Parliament acts. While this might not happen soon (reflecting political will to act in the short term), seeking to block an application for statutory recognition by entering into a “sweetheart” deal with another trade union or staff association on limited, peripheral matters (outside bargaining on pay, hours and holidays) will have a limited shelf-life.
Barnet LBC v Unison & NSL Ltd An
Employment Tribunal decided that Barnet LBC had breached its redundancy and TUPE information and consultation duties and made a protective award. In calculating the periods for which those awards should be made, it took as a starting point the maximum that is available in law and worked down from that. The EAT disagreed with this approach, holding that the starting point of the maximum was only to be used where the employer had not engaged in any consultation at all. This is a technical decision, but it may assist employers seeking to appeal protective awards or to negotiate a settlement (the parties have since settled this case without recourse to a further Tribunal hearing).
More practically, it serves as a reminder of the large sums potentially at risk for a failure to properly inform and consult. In this case, the potential award amounted to £850,000. In addition, the award resulted from the employer’s failure to provide information on agency workers to employee representatives. This is the requirement, added in 2011, to disclose “suitable agency information” during TUPE and collective redundancy consultation processes: specifically, the number of agency workers working for the employer, the parts of the undertaking in which they are working and the type of work they are carrying out. While a relatively new duty, it should not be overlooked.