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UK labor law quarterly update – December 2020

  • United Kingdom
  • Employment law

17-12-2020

Welcome to our December 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

Employee COVID-19 health and safety consultation: Eversheds Sutherland survey report

This autumn we surveyed HR professionals and Employment counsel on how their employers had consulted with their workforces over COVID-19 health and safety measures (“COVID-H&S”), as well as lessons learned.

In our survey report, respondents reported high levels of:

  • engagement with employees and/or their representatives over COVID-H&S measures
  • success in relation to COVID-H&S consultation, with it helping to allay employees’ fears and strengthen employee confidence in, and compliance with, workplace safety

Given the speed and extent of new COVID-H&S guidance and regulations emerging this year, this positive response was encouraging. However, with the roll-out of vaccines and the ongoing mental health challenges of homeworking, COVID-H&S will remain a key workplace issue for some months to come.

This means that employers should review the effectiveness of their COVID-H&S consultation to date and, as identified by survey respondents in terms of lessons learnt, ensure that sustainable systems are in place to facilitate agile, regular and collaborative workforce engagement and consultation, alongside feedback mechanisms (including hotlines for workers) to facilitate the early identification of issues.

The right to picket during COVID-19 restrictions

According to Unite, the Government has “conceded that the right to picket should be upheld” where workers, taking lawful industrial action, picket their workplace during COVID-19 lockdown restrictions.

The High Court was due to hear a judicial review application, brought by Unite, in November after the union reported that pickets were moved on by the police and warned that they were contravening lockdown rules. The union had claimed that the right to picket is a fundamental right protected by the Human Rights Act and that pickets were picketing in a socially distanced manner.

Changes at the top: UNISON and GMB

UNISON’s General Secretary, Dave Prentis, is retiring at the end of December after 20 years as the union’s most senior figure. His successor will be announced in January 2021 following an election process held in November. The GMB union has also announced that Warren Kenny will be Acting General Secretary until an election is held next year, following the resignation of Tim Roache earlier in 2020.

Recent labor case law

R (IWGB) v Sec. of State for Work and Pensions: Health and safety protection for workers

In a judicial review, the High Court has granted the IWGB trade union a declaration that EU health and safety law has not been properly implemented into UK law. In particular, that workers (as well as employees) should be protected from a detriment on H&S grounds and in the provision of PPE.

Despite leaving the EU and, subject to future EU trading terms, this decision will continue to apply unless the Government legislates from 1 January 2021 to confirm that workers are to be excluded. In the meantime, employers should review their H&S policies, including the provision of PPE, in relation to workers. Workers may seek to rely on this case before a Tribunal where, for example, they are disadvantaged for leaving work or refusing to attend due to a reasonable belief in serious and imminent danger. The risk of HSE enforcement action also arises (however, the HSE has yet to confirm its response to the case).

Key labor case law expected in 2021: changing terms and union recognition appeals

The significant Kostal decision, which went in favour of the employer, is being appealed in the Supreme Court on 18 May 2021. The case concerns trade union legislation – section 145B TULRCA - which restricts an employer’s ability to change employment terms in a unionised workplace without collective agreement.

The Court of Appeal in Kostal recognised that in circumstances where an employer needs to change employees’ terms due to economic necessity, and not simply because of a desire to abandon collective bargaining, then provided the employer has done its best to secure the union’s agreement to the proposed new terms, and there is no evidence of employer hostility towards the union, then as a one off measure it may be lawful for the employer to offer new terms to its employees.

In addition, two appeals brought by the trade union IWGB are progressing. The first was heard by the Court of Appeal in November and a judgment is awaited. The appeal involves its unsuccessful application for joint employment union recognition with two employers for one set of workers: a facilities management provider and the organisation where its services are performed. The union argued that the latter controlled the terms and conditions provided by the former. The Central Arbitration Committee (CAC) rejected the application, deciding that the law provides for workers to collectively bargain with their direct employer only.

The second IWGB appeal challenges the CAC’s decision to refuse IWGB’s application to be recognised for collective bargaining by Deliveroo on behalf of a group of delivery riders. A previous judicial review of the CAC’s decision held that restricting statutory recognition rights to ‘workers’ providing personal service under UK law was justified and proportionate. As the riders were self-employed contractors, not ‘workers’, they fell outside the statutory recognition regime. The case will be heard in February 2021 following COVID-19 delays.

Verizon EWC & Charpentier v Verizon Group: £40,000 penalty for EWC failure

As organisations with European Works Councils (EWCs), particularly those with EWCs based in the UK, respond to the imminent end of the Brexit transition period, this case is a costly reminder of the potential risks associated with European Works Councils (EWCs) breaches – risks that may increase depending on the jurisdiction that EWCs transfer to after 31 December 2020.

The Verizon European Works Council applied to the Employment Appeal Tribunal (EAT) for the issue of penalty notices against Verizon’s central management for breaches of EWC regulations which were the subject of findings by the CAC. The EAT issued a £35,000 penalty notice for a failure to properly inform and consult with the EWC about a proposed cross-border reorganisation, and a further £5,000 penalty notice for refusing to pay the expenses of the EWC’s expert.

Another recent CAC decision has found an employer in breach of EWC regulations in the way that it failed to provide any, or sufficiently detailed information, to the EWC to enable reps to undertake a detailed assessment, prepare for consultation and to provide an opinion following consultation. For example, the CAC noted that the employer should have worked harder to collect the necessary information from parts of the business affected and should have provided the financial rationale for the proposed job cuts, as well as identifying the actual roles to be cut. This decision reflects the direction of travel with recent CAC decisions, in particular an expectation that management should provide detailed information on trans-national proposals to reps. A dilution of this approach is unlikely, whichever jurisdiction an EWC may transfer to next year.