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June UK labour law quarterly update

  • United Kingdom
  • Employment law

26-06-2018

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

UK labour law news

UK labour case law

UK labour law news

Union membership levels in the private sector rise

Government trade union membership figures for 2017 report a slight increase in union membership (an extra 19,000). However, given the increase in UK employees more broadly, the proportion of union members dropped from 23.5% to 23.2% (the lowest rate of membership since 1995).

Union membership levels in the private sector rose by around 70,000 (from 13.4% to 13.5%) in 2017. In the public sector, it fell by 51,000 (from 52.7% to 51.8%). The ageing nature of trade union members remains a concern for the movement: the proportion of members aged below 50 has fallen since 1995, whilst the proportion aged above 50 has increased. This led the TUC’s Frances O’Grady to tell the BBC that unions have ‘a problem’ in reaching young people.

The number of strikes in the UK hits a record low

ONS figures show the number of strikes in the UK has hit a record low, with just 79 walkouts taking place in 2017. However, although this number has fallen, large-scale stoppages have become more common. For example, two stoppages accounted for 45.9% of all working days lost in 2017.

The transport and storage industry saw the largest share of industrial action, with most being in public transport. The number of working days lost in the private sector in 2017 was the largest since 1996, whereas the public sector experienced the lowest figure on record. Stoppages due to wage disputes accounted for around 74% of all working days lost in 2017.

Gerard Coyne continues to dispute McCluskey’s election as Unite general secretary

Gerard Coyne, who lost to Len McCluskey in last year’s Unite election for general secretary, has raised a number of complaints about the way the election was run before the Certification Officer (CO), in a bid to have the result overturned. He failed on his preliminary point – that Unite had no power to hold the election at all at the time it was held – and his remaining complaints will be heard over 5 days in June 2018. In the meantime, it is understood that Mr Coyne is appealing the CO’s decision on the preliminary point.

Public sector facility time reporting guidance published

Many public sector employers must publish information relating to facility time for relevant union officials. Regulations, which came into force on 1 April 2017, require publication of specified information on an annual basis covering the 12 month period beginning with 1 April. The first period runs from 1 April 2017 to 31 March 2018 and information must be published before 31 July 2018.

When the Regulations were published the Government stated that it would be issuing guidance - this has now taken place. A summary of the guidance and a recap on the key publication requirements are here. The Government expects that, as employers publish their data, there will be a benchmarking effect causing some to review their time off arrangements.

EU finds weakness in current EWC legislation but is not taking legislative action

The EU has completed a review of the effectiveness of the EWC Directive. In summary, it highlighted a number of concerns relating to the limited number of new EWCs, the effectiveness of EWC consultation procedures and shortcomings in the way some Member States have implemented, or enforce, some of the Directive’s provisions. In relation to consultation, it states: “Despite having the right to express an opinion, European Works Councils members seem to have little influence in the decision-making process in their companies.” However, rather than legislate further, the Commission proposes creating and sharing a practical handbook for EWC practitioners; providing funding to social partners to support the implementation and effectiveness of EWCs; and ensuring the full transposition of key provisions of the Directive in Member States.

UK labour case law

Unite v Nailard: are trade unions vicariously liable?

The Court of Appeal upheld the EAT’s ruling that two elected workplace union officials were agents of the union and that the union was therefore liable for their discriminatory acts towards a union employee. This is a significant development and has practical implications for unionised employers.

The case (read it here) concerns sexual harassment by two Unite full time workplace officials (employed by H, the workplace employer, not Unite) against a Unite regional officer (N - employed by Unite with responsibility for union members at H).

A key question decided by the EAT, and upheld by the Court of Appeal, concerned whether Unite could be vicariously liable for the discriminatory acts of the workplace officials, given that they were not employed by the union.

The Court confirmed that the two officials were agents of the union. As a result, Unite could be liable for their behaviour when they harassed N in the course of carrying out their union-authorised functions, such as conducting meetings, liaising with N and representing Unite.

This case could assist employers where a union is failing to respond to concerns over officials exhibiting potentially discriminatory behaviour. In such circumstances, the risk of the union being vicariously liable should focus its attention on an appropriate response. Employers may also find that unions are more receptive to the amendment of collective agreements, to give employers the right to remove badly behaving officials.

Finally, it should be noted that employers, not just the union, may be vicariously liable for the discriminatory acts of their employees – here, union officials - unless they have taken reasonably practicable steps to prevent the discrimination. It is a risk that another employer in this type of scenario might be a party to the complaint, as well as the union. This serves as a reminder not to stand back, for example, where union officials are involved in inter-union disputes or inappropriate behaviour.

We understand that Unite is seeking to appeal the decision to the Supreme Court.

Trade union supported worker status litigation continues to explore new legal challenges

It has been reported that the IWGB has sought applications to bring judicial reviews of two recent Central Arbitration Committee’s (CAC) decisions. They concern the CAC’s rejections of its application for recognition at Deliveroo (this application has been given permission to proceed) and its application for joint employer recognition elsewhere (recognition with two employers for one set of outsourced workers). However, the union faces considerable difficulties with both cases, in particular the joint employer application.

Meanwhile, there are ongoing worker status and associated holiday pay/minimum wage/other claims which are supported by a number of trade unions, including GMB and IWGB. For example, the Uber appeal will be heard in the Court of Appeal this October, a cycle courier recently won a worker status claim against Addison Lee, supported by IWGB, and there is an decision expected on whether TUPE applies to workers, not just employees. Most involve drivers and couriers and some involve multiple claimants with potential compensation in the hundreds of thousands of pounds, as well as implications for business models based on self-employment.

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