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UK Labour Law Update - September 2014

  • United Kingdom
  • Employment law - HR E-Brief


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

UK labour law news

UK labour case law update

UK labour law news

Conservative party manifesto: measures to tighten strike laws
The media has reported that the Conservative Party general election manifesto will include measures to reform strike laws. The reported measures include the requirement for a minimum 50% strike ballot threshold (of the number of eligible voting union members in contrast to the current simple majority of those who actually vote), a three-month time limit after the ballot for the action to take place (after which a new ballot should be held), curbs on picketing and a requirement for unions to provide greater details of the duration and form of proposed strike action. Unions would also be required to give employers 14 days notice before taking industrial action, rather than seven days now. Criticising the proposals, the TUC General Secretary urged the Government to allow electronic ballots in future strike ballots as a means of increasing member participation.

It remains to be seen whether these measures do make their way in to the manifesto given their inevitable controversy and the potential risk that they may result in further litigation in the European Court of Human Rights.

ONS publishes commentary on 2013 strike statistics
Over the summer, the ONS published a commentary on the number of workings days lost to strikes during 2013. It notes that 443,600 working days were lost; the majority of which related to pay disputes. When the last 20 years is compared with the previous 20 years, it shows that the average number of working days lost per year has decreased considerably from 7.8 million days in the period 1973-1992 to 615,700 days in the period 1993-2012. During 2013, the education sector had the largest number of working days lost, followed by the public administration and defence sectors.

CAC annual report reveals drop in applications
After an increase in the number of applications for trade union recognition for two years running, the number fell to 30 in 2013-14. The manufacturing, transport and communication sectors continue to account for the majority of applications for recognition and the average size of bargaining units remains comparatively small, ranging in the past four years, from 87 workers to 261. We continue to advise many of the employers involved in potential and actual statutory recognition applications - key lessons include a tactical understanding of each step of the statutory request process, being proactive, having clear objectives and acting early in relation to employee communication and engagement.

UK labour case law update

R (on the application of Boots MS Ltd) v CAC, PDAU and BIS
Following long and complicated litigation, the High Court has decided 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 derecognition of the “sweetheart” union. The Court retreated from declaring the relevant blocking legislation in TULRCA incompatible with the European Convention of Human Rights and it remains in force.

The Pharmacists' Defence Association Union (PDAU) applied to the Central Arbitration Committee (CAC) seeking statutory recognition in respect of a group of pharmacists. Boots argued that the CAC should not accept the application as Boots already had an established relationship with a trade union, the Boots Pharmacists Association (BPA). As such, paragraph 35 of TULRCA applied which blocks an application for statutory recognition from proceeding where there is already in force a collective agreement under which a union (BPA in this instance) is recognised, even where that union is non-independent, as in this case. Such deals are also known as “sweetheart” deals.

CAC decision
The CAC recognised that, while there was a collective agreement in force with the BPA, it only extended to consultation machinery and not to collective bargaining in relation to terms and conditions of employment, pay, working hours or holidays. The CAC decided that such a "sweetheart" form of collective agreement was not what was envisaged by the right to engage in collective bargaining under Article 11 of the European Convention of Human Rights. It therefore interpreted paragraph 35 to only permit one collective agreement to block another union's statutory recognition application where the existing agreement included bargaining over pay, hours and holidays as a minimum.

Judicial review decision
Boots brought a claim for judicial review of the CAC’s decision and won. The Court confirmed that whilst paragraph 35 can act to block statutory recognition applications where there is in existence a “sweetheart” deal, there is a work around in TULRCA which cured the problem and therefore there was no breach of Article 11. The cure involves a successful application for derecognition of the BPA. In other words, if PDAU could persuade a worker in the bargaining unit to apply to the CAC to end collective bargaining with the BPA, the way would be clear for the PDAU to then make is application for recognition. In such circumstances, paragraph 35 does not even apply.

North Essex NHS Foundation Trust v Bone, Serco v Dahou
Until now, case law guidance on handling alleged detrimental treatment on trade union grounds is scarce, yet the risk of facing such allegations in unionised workplaces is a concern. We now have two EAT decisions clarifying how the statutory detriment protection operates in practice. Reassuringly for employers, they confirm that mere inferences, unsupported by a proper evidential basis, that an employer acted improperly is not enough for a worker to succeed.

North Essex case
In the North Essex case, the EAT clarified that it is not enough to show that the employer has subjected a worker to some detriment. It is necessary also to demonstrate that the employer's motivation – its sole or main purpose - in so doing was improper, namely, to prevent or deter the worker from being/becoming a union member or taking part in union activities, or penalising him for doing so. It is not sufficient to find that the effect of the employer’s action is to deter or prevent union membership/activities: the action must be done or deliberately not done with an improper purpose.

Serco case
In Serco, the EAT clarified how the burden of proof works in such detriment cases. It criticised the Tribunal for simply inferring that Serco had acted unlawfully, after they were not persuaded by Serco’s explanations for D’s treatment. The EAT confirmed that this was the wrong approach and that the Tribunal was required to evaluate the evidence, make findings of fact and that such inferences could only be drawn with the proper evidential basis to support them. This means a Tribunal should only uphold a detriment claim on a proper evidential basis (in contrast to discrimination claims where prohibited treatment may be more readily inferred).

Training and events

Labour relations conference

Employee relations: Working effectively with your union and employee representatives

@ Eversheds LLP, 2014

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