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UK labor law quarterly update - June 2022

  • United Kingdom
  • Employment law
  • Labor law and trade union issues

27-06-2022

Welcome to our June UK labor law quarterly update. This edition contains the following content:

News round-up

Recent labor case law

Eversheds Sutherland labor law publications, events and training

News round-up

Industrial action: agency workers and trade union damages

A Government announcement has confirmed an intention to repeal existing restrictions which prevent agencies from supplying temporary workers to backfill employees who are taking part in industrial action. In addition, with effect from 21 July 2022, it has raised the maximum damages that courts can award against a trade union, when strike action has been found by the court to be unlawful. The cap on damages increases from £250,000 to £1 million for large trade unions.

The timing of the agency worker changes is currently unclear, given that Parliamentary approval is required. Whether this can be scheduled, and obtained, before the July recess remains to be seen. In addition, when a repeal of the agency worker ban was proposed in 2015, it met opposition from the devolved administrations. For example, the Welsh Assembly consulted on maintaining the ban in the context of industrial action involving devolved public authorities in Wales.

Fire and rehire: Statutory Code

The Government will introduce a new Statutory Code of Practice on so-called “fire and rehire” (involving the dismissal and re-engagement of employees on new terms). While the timing of the Code’s publication is unclear, it is intended to cover the practical steps employers should take when engaging in “fair, transparent and meaningful consultations” on proposed changes to employment terms. Tribunals will have the power to apply a compensation uplift of up to 25% if an employer unreasonably fails to comply with the Code. Existing Acas and case law guidance already identifies the steps a reasonable employer should take and it will be important to check, when the Code is published, whether it introduces new requirements for employers and the scope of the 25% uplift.

Trade union statistics reveal falling membership levels

Trade union membership statistics for 2021 reveal the lowest union membership rate since 1995 (23.1%), with the downturn primarily driven by falling female and public sector membership. The number of employee union members fell by 62,000 to 6.44 million in 2021. Read the statistics.

E-balloting for trade union industrial action ballots

In 2017, an independent review into electronic balloting for trade union industrial action ballots rejected the immediate introduction of e-balloting and instead recommended that testing should examine its reliability, including whether the technology is capable of withstanding cyber-attacks. The Government said, in response, that it would consult with experts before deciding how to proceed. More recently, it confirmed that it has undertaken the consultation and will issue its decision on e-balloting “in due course”, however, it appears in no rush to do so.

Other news: change at the top of the TUC, Deliveroo recognises the GMB, changes to “companion” in workplace disciplinary/grievance meetings?

  • Frances O’Grady has announced that she will be standing down as TUC general secretary at the end of the year. Her replacement will be elected at the TUC's annual meeting in September.
  • The GMB union has signed an agreement with Deliveroo covering more than 90,000 self-employed riders. The “Voluntary Partnership Agreement” gives GMB rights to collective bargaining on pay and consultation rights on benefits and other issues, including health and safety. It recognises that the riders are self-employed and has been described by the GMB as a “blueprint” for those working in the platform self-employed sector. The move was criticised by fellow union, the IWGB, which has been litigating, so far unsuccessfully, its application for statutory recognition with Deliveroo.
  • There is a statutory right to be accompanied at a disciplinary or grievance hearing by a fellow employee or trade union official. The Education Secretary has told Parliament that he supports extending that right to a representative from a professional body. While this change is focused on teachers, employers should monitor this development in case it provides employees with a right to legal representation at such hearings (such a move has been resisted by employer bodies in the past).

Recent labor case law

Injunction to prevent employer from ‘firing and rehiring’: employer appeals

Earlier this year, USDAW was granted an injunction by the High Court preventing Tesco Stores from going ahead with a dismissal and re-engagement exercise (read our briefing for further details). The employer has appealed that decision, with a hearing on 9 June, and we await the outcome. Although it is a case based on unusual circumstances, the Court of Appeal’s decision will have implications for all employers.

Check-off a contractual entitlement: Cox and Others v Sec. of State for the Home Department

The claimants were employed by the Home Office and were members of the PCS union, which was also a claimant. PCS subscriptions were collected by means of 'check-off' arrangements whereby deductions were made directly from their salaries through the payroll system and paid to PCS. The Home Office decided to remove check-off, following a Government direction that it was “not desirable” to provide such an “unnecessary service”. Based on an analysis of the contracts, handbooks, collective agreements and other relevant employment documentation, the court decided that the individual claimants had a contractual entitlement to check-off which had been breached. The check-off provisions were apt for incorporation because: check-off is an important facility of real benefit to the employees and PCS; the wording was of a contractual nature and did not conflict with any other written provisions in the documents; there was sufficient detail and certainty in the wording; and they were contained in documents that contained other legal obligations. In addition, the court held that PCS also had the right to enforce the check-off contractual term. This is a helpful reminder of the approach to the incorporation of contractual terms.