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September UK labour law quarterly update

  • United Kingdom
  • Employment law

24-09-2018

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

UK labour law news

UK labour case law

UK labour law news

Trade union facility time data for over 1370 public sector employers made public

Many public sector employers had to publish, before 31 July 2018, information relating to facility time for relevant union officials. Regulations require publication of this information on an annual basis (for further details, read our briefing). The government has now made public the information for over 1370 public sector employers and anticipates there will be a benchmarking effect, causing some to review their time off arrangements. For example, for those employers with the highest facility time costs or where activity time is paid (which is not a legal requirement).

John McDonnell promises the “biggest extension” of collective rights

John McDonnell has confirmed Labour’s commitment to “repeal anti-trade union legislation and strengthen trade union rights, to give workers a seat at the Cabinet table by establishing a Ministry of Labour and to roll out sectoral collective bargaining across the economy” in the “biggest extension of individual and collective rights our country has ever seen”. This reflects the Party’s preparation for a general election, should the Conservatives’ split over Brexit and precipitate an early election.

Government intervenes in IWGB recognition application for outsourced workers

The trade union, IWGB, is proceeding with its judicial review application of a recent CAC decision. The CAC had rejected IWGB’s application for joint employer recognition (recognition with two employers for one set of outsourced workers) given that the law provides for workers to collectively bargain with their direct employer only. The union is arguing a breach of human rights. Over the summer, BEIS joined the proceedings as an interested party, reflecting the potential repercussions of this decision on public sector outsourcing as well as on British labour law more generally.

UK labour case law

Kostal UK Ltd v Dunkley: appeal to be heard in important changing collective terms case

This controversial EAT decision concerns section 145B TULRCA and affects the ability of employers to change employment terms and conditions in a unionised workplace without collective agreement (for the facts and decision, read our briefing). Permission to appeal has now been granted to Kostal and the appeal hearing is expected to take place before April 2019. The EAT had rejected Kostal’s submission that their interpretation gave unions a veto over changes to terms and conditions. However, employers will be looking to the Court of Appeal for guidance on when an employer may make offers directly to their workforce without fear of contravening 145B. We will update readers on the progress of the appeal.

PCS, Prospect and FDA seek judicial review of civil service pay cap consultation

According to the three unions, their application for a judicial review against the Minister for the Cabinet Office is expected to be heard early in October. They are alleging that the “inadequate” consultation process on the 2018 civil service pay guidance was unlawful and are challenging the government’s reported view that the unions had no legitimate expectation of consultation when setting the pay framework figure.

PCS seeking legal advice on lawfulness of “archaic and outdated” postal balloting

After recently failing to secure sufficient votes to meet the 50% strike ballot threshold, the PCS union has stated that it is seeking legal advice on whether to challenge the Trade Union Act 2016. It is “exploring whether the combination of the 50% turnout ballot threshold and the requirement for postal ballots infringe the right to freedom of association”. It believes that “those members failing to vote, for whatever reason, are essentially counted as voting against taking action”. In the union’s view, had online voting and secure workplace balloting been available, the turnout would have been above 50%. The government’s independent review into electronic balloting last year rejected its immediate introduction and instead recommended that testing should examine its reliability.

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