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UK labour law quarterly update - September 2020

  • United Kingdom
  • Employment law

30-09-2020

Welcome to our September UK labour law quarterly update. In this edition we review recent key labour law developments and highlight our latest publications, training and events.

News round-up

Labour relations during the pandemic

Central Arbitration Committee Annual Report 2019/20

Labor Relations Virtual Conference – the resilient workplace

Recent labour case law

Kostal UK v Dunkley: Supreme Court hearing date

IWGB appeals: Latest news

Morales v Premier Fruits (Covent Garden) Ltd: Interim relief

News round-up

Labour relations during the pandemic

There have been some positive and negative examples of engagement between trade unions and employers during the pandemic. At a national level, the TUC and CBI have collaborated on employee safety and other issues. For instance, they worked together to secure the coronavirus job retention scheme (CJRS), recalled by Dame Carolyn Fairbairn, the CBI’s Director-General, as “An extraordinary moment of unity – I sat with Frances (O’Grady, TUC General Secretary) across the table from the Chancellor for 45 minutes, working to the same goal of helping people keep their jobs”.

Health and safety has been the focus of a number of trade union campaigns. For example, Unite highlighted the link between outbreaks of COVID-19 at meat processing plants and what it described as “the sector's widespread exploitation of migrant workers on low pay and insecure contracts”.

The IWGB is supporting an application for judicial review of the UK Government’s alleged failure to correctly transpose EU health and safety protections into UK law. The claim asserts that the domestic legislation (e.g. employer obligations under the Health and Safety etc at Work Act 1974, and the prohibition of dismissal or detriment on health and safety grounds in the Employment Rights Act 1996) offers protection only to employees, when it should also apply to the broader category of workers as defined under EU law. The case is due to be heard in the High Court after 7 September.

In June, IWGB was unsuccessful in a judicial review application seeking to argue that the exclusion of “limb b” workers from the Government’s statutory sick pay (SSP) and CJRS provisions is discriminatory. The TUC, via its campaign #SickPayForAll, has urged the Government to: scrap the SSP minimum earnings threshold; ensure SSP is paid to self-isolating workers and increase the level of SSP to at least the level of the real Living Wage (currently £320 per week). The Government has now responded with plans to introduce a £500 lump sum for those on low incomes, or in receipt of benefits, who are required to self-isolate and cannot work from home.

For some employers the obligation to collectively consult about redundancy proposals has been made more challenging by trade unions refusing to acknowledge and/or engage in s188 consultation on a remote basis. There have also been threats of strike action where employers have sought to vary contractual terms by dismissal and re-engagement, in circumstances where consent to those changes has not been forthcoming. In fact, bringing about a change in terms and conditions by terminating one contract and offering the employees a new contract on new terms has become politicised, with recent criticism coming from the Labour party, plus cross-party support for a Private Members Bill, aimed at making such dismissals automatically unfair. However, there have been many instances where trade unions have engaged in constructive dialogue with employers to avoid job losses, e.g. Unite have been complimentary about their deal with Ryanair.

Trade unions initially focused their attention on the plight of frontline workers e.g. those working in medical or care home settings, campaigning latterly for the Government to support the UK manufacturing and hospitality sectors. Most recently, Unite has brought together the first ministers of the devolved nations in a call for urgent UK Government intervention to help the aerospace sector, with the creation of a “UK Aerospace Taskforce”.

Many employers will not have had the luxury of time when making important changes and this can increase the likelihood of conflict arising. However the examples provided above demonstrate how  a positive attitude to union engagement remains vital, with careful planning and consideration given to how to engage with unions, providing the greatest opportunity to secure business objectives. 

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Central Arbitration Committee Annual Report 2019/20

The report, published in July, states that in the year ending 31 March 2020, the Central Arbitration Committee (CAC) received 69 applications for trade union recognition under Part I of Schedule A1 to the 1992 Act. This compares with 56 applications in 2018/19 and 35 two years ago. According to the outgoing Chief Executive, James Jacob, this is the highest recorded increase in applications since 2003/04. From the CAC’s perspective, there are no obvious reasons for this increase. One might assume this could be linked to the growth in trade union activity on behalf of those involved in the gig economy, which has attracted media attention. However, this is not borne out by a review of the CAC outcomes from the relevant periods in 2019 and 2020, which suggest instead that more “traditional” trade unions remain responsible for the majority of applications.

The report confirms that the applications received cover a wide span of employment sectors, with a continued decline in the number of applications received from the manufacturing, transport and communication sectors -  36% for 2019/20, compared to 48% in the preceding year.

Interestingly, during 2019/20, there were no complaints received under the Information and Consultation Regulations for the first time since it came into being on 6 April 2005. Whether the reduction in the percentage threshold required to trigger the Regulations from 6 April 2020 (from 10% down to 2% of employees, subject to a minimum of 15), will lead to more complaints in future remains to be seen.

Since statutory recognition rights were first introduced 20 years ago, there have been 1166 applications and we have advised many of the employers involved. We provide an overview of the complex statutory recognition process in our UK Guide to Labour Law, but for further information please contact Tom Player or Clare Ward.  

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Labor Relations Virtual Conference – the resilient workplace

Our 17th Annual Labor Relations Conference is going virtual this Autumn. Join us online with our great line-up of speakers, ask questions, get involved in the debate and network with your peers.

The half-day conference will consider labor law lessons learned from the pandemic, the economic challenges ahead and the implications for jobs. We will consider how employers have managed workforce health and safety consultation, review the latest on the Government’s Good Work agenda and on Brexit, and debate how to build resilient workplaces going forwards with two leading employers. Further details can be found here and also see the short video recorded by Tom Player.

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Recent labour case law

Dunkley and Ors v Kostal UK Ltd : Supreme Court hearing date

We mentioned in our March update that the significant Court of Appeal decision in this case was being appealed by the claimants to the Supreme Court. That hearing has now been listed to take place on 18 May 2021, so it will be some time before we discover whether the Court of Appeal’s judgment, which was favourable to employers, will be upheld.

Kostal concerns section 145B TULRCA, which restricts an employer’s ability to change employment terms in a unionised workplace without collective agreement. For a reminder of the arguments before the Court of Appeal see our alert.

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IWGB appeals: latest news

A new hearing date is currently awaited for IWGB’s Court of Appeal hearing in the Deliveroo case as the hearing listed for 7 April 2020 had to be vacated because of COVID-19.  The appeal concerns 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.

However, the IWGB will be at the Court of Appeal on 25 or 26 November 2020, for the hearing  relating to its unsuccessful application for joint employment union recognition with two employers for one set of workers: a facilities management provider, its workers and the organisation where its services are performed. The IWGB had argued that the latter controlled the terms and conditions provided by the former. The CAC rejected the application, deciding that that the law provides for workers to collectively bargain with their direct employer only.

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Morales v Premier Fruits (Covent Garden) Ltd: Interim relief

A claimant has been granted interim relief in what is believed to be the first COVID-related Employment Tribunal judgment. Interim relief is available only in very limited circumstances where the dismissal is alleged to be automatically unfair because the reason (or principal reason) for dismissal is, for example, union membership or activity, or making a protected disclosure. A successful interim relief application is extremely favourable from a claimant’s perspective because they will remain on full pay until the unfair dismissal litigation is concluded. Moreover, even if the claimant loses at the substantive hearing, they will not be required to reimburse to their former employer the pay they have received since the interim relief hearing.

In this case, the employer’s business was badly affected by the pandemic, so it proposed that all staff take a 25% pay cut and one week’s unpaid leave per month. United Voices of the World raised a grievance on M’s behalf, stating that the wage reductions had caused him detriment and the health and safety of staff was being endangered by a lack of PPE.

M was excluded from a subsequent staff meeting, but M’s colleague (DL) recorded the meeting on his phone and this revealed that M’s manager (T) had expressed strong anti-union views.  M’s grievance was not upheld and he was dismissed, on the face of it, because he had not consented to the pay cut. M then brought unfair dismissal proceedings under section 152 TULRCA i.e. dismissal for being a member of a trade union or making use of trade union services, and on grounds that he had made protected disclosures related to health and safety.

The Employment Judge granted M’s application for interim relief, concluding M had a “pretty good chance of success” of establishing his s152 claim, although not his whistleblowing claim, at a full hearing. In reaching this decision, the Judge took into account the strong hostility to trade union involvement exhibited by T at the staff meeting. (It was noted, too, that DL had been dismissed because of his involvement on M’s behalf).

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Eversheds Sutherland UK labour law publications, events and training

A UK Guide to Labour Law

A UK Guide to European Works Councils

Redundancies in a virtual COVID-19 world, including collective consultation - briefing

Redundancies in a virtual COVID-19 world, including collective consultation - webinar

Labor Relations Virtual Conference