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Education HR e-briefing 603: UK Labour Law Update December 2014

  • United Kingdom
  • Education - Briefings


Welcome to our December UK labour law update. This edition contains the following content:

UK labour law news

UK labour case law update

UK labour law news

Working time reform more likely

The EU Commission has issued a consultation on the Working Time Directive, with the aim of producing an impact assessment of options for reform. This marks a step change in activity given the stalemate over recent years – in essence, there is agreement that the Directive is no longer fit for purpose, but there has been to date no agreement on how to fix it.

Given the role of trade unions in shaping the way forward, reflecting the remit of social partners in this process, and the importance of working time rules to many employers, we have summarised the themes posed by the Commission’s consultation below:

  • The Directive should apply the 48 hour limit per worker or per employment contract (where a worker has more than one job, for example).
  • Defining “on-call” time should be left to member states and their social partners (employer and trade union representatives) or codified in the Directive.
  • “Stand-by” time should be codified as non-working time, or as partial working time, in the Directive together with new limits on stand-by time.
  • Compensatory rest should be granted immediately or within 2/4 days.
  • The 48 hour reference period should be extended (up to 12 months for all sectors).
  • The opt-out should be abolished and/or stricter conditions introduced.
  • The autonomous worker exemption should be clarified or narrowed or widened.  
  • Specific questions are also asked about the emergency services and health sector and whether the Directive needs reforming to address new working patterns including zero hour contracts, flexitime and home-working.

The consultation closes in March next year and the impact assessment is expected during 2015.

Politics, next year’s General Election and labour law – an unhealthy mix? 

October’s Carr Report (The Report of the Independent Review of the Law Governing Industrial Disputes) demonstrated the challenges posed by mixing politics with labour law. The refusal of trade unions to participate, together with a reluctance from employers to engage, reflected a progressively politised environment.

In that context it is notable that the Conservatives have made a number of labour law policy commitments (read more here) while the other main political parties have focused on low pay and gender issues as well as access to justice, including employment tribunals (read more here). We will analyse the manifestoes in our next update.

UK labour case law update

Westminster Kingsway College v University and College Union: Rolling strikes relying on a ballot held many months previously are a challenge for employers. This case is a useful reminder that a strike ballot has its limits – here, the original ballot arose out of a 2013/14 pay dispute and action had stopped by the time negotiations for the following year’s pay began. When a strike was called in protest against 2014/15 pay (relying on the original ballot), an injunction was granted on the basis that the 2013/14 action had ended, meaning that this was a new strike requiring the support of a fresh ballot. It will always be a question of fact and degree whether the protection of a particular ballot has been exhausted, however, the longer the period of interruption in strike action, in the absence of any specific reason, the more likely a new ballot is required.

Bear Scotland Ltd v Fulton & Or; Hertel (UK) Ltd v Woods & Ors; and AMEC Group Ltd v Law & Ors: Following the EAT's decision in these combined cases that some overtime payments need to be included when calculating holiday pay, employers need to evaluate existing holiday and working arrangements and to consider whether to agree or implement changes to ensure ongoing compliance. Failure to do so could result in collective grievances, claims, or even industrial action. Whilst negotiating an agreement now might entail a compromise on issues such as the inclusion of voluntary but regular overtime, it will also (if binding) ensure that there is no risk of backdated claims arising in future. Doing a deal now also allows employers to rely on the EAT’s findings on back dated pay, whilst they remain in force. Read more about the Bear cases here.

USDAW & Wilson v Ethel Austin Ltd (in administration) & Ors: This collective redundancy consultation case was referred to the European Court in 2014. The Attorney General’s Opinion is due on 5 February 2014 and judgment is expected later in 2015. The referral will assist the Court of Appeal to decide whether the EAT was right to disapply British law, with the result that the 20 employee trigger for collective redundancy consultation applies per employer, not per establishment.

R (on the application of Boots MS Ltd) v CAC, PDAU and BIS: Boots MS Ltd won the latest stage in this litigation with the High Court deciding that ‘sweetheart’ deals with non-independent trade unions may act to block a trade union’s statutory recognition application. However, this strategy may not work in the long term if employees can be persuaded to seek de-recognition of the ‘sweetheart’ union.

It has since been reported that the union involved is seeking leave to appeal on the basis that having to rely on assistance from a third party (its own members) in order to pursue a recognition claim is a breach of Article 11 of the European Convention of Human Rights.

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