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UK labour law quarterly update – December 2019

  • United Kingdom
  • Employment law

18-12-2019

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

News round-up

Recent labour case law

Eversheds Sutherland labour law publications, events and training

News round-up

The Conservative General Election win: impact on labour law?

Now the dust has settled on last week’s General Election, employers are reflecting on the workplace implications. In labour law terms, the Conservative manifesto limited its ambitions to a new requirement that “a minimum service operates during transport strikes”. Further details will emerge in the Queen’s Speech and accompanying legislation. Similar examples are seen in some European countries where the employer and union (and/or the state) agree minimum staffing levels and processes for a particular strike, or for any strike, in order to maintain services that are essential for the public.

More broadly, the manifesto contained a number of employment commitments including: creating a single enforcement body; ensuring that workers have the right to request a more predictable contract; increasing the National Living Wage to two thirds of average earnings (forecast to be £10.50 per hour) and widening its reach to workers over 21 by 2024; consulting on making flexible working the default position unless employers have good reasons not to allow it; and, introducing a “firmer and fairer” Australian-style points-based immigration system. For further information, including a summary of Conservative proposals already in the pipeline before the election, read our briefing.

IWGB gig economy statutory recognition complaint goes to the Court of Appeal

In 2018, the High Court agreed with the Central Arbitration Committee’s (CAC) decision to refuse IWGB union’s application to be recognised for collective bargaining by Deliveroo on behalf of a group of delivery riders. The Court decided 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. IWGB has been granted permission to appeal and the hearing is expected to take place in the first quarter of next year.

Recent labour case law

Royal Mail v CWU: Court of Appeal upholds injunction preventing strike by Royal Mail workers

After a vote in favour of industrial action, Royal Mail contended that the CWU had breached the statutory balloting rules. The High Court granted an injunction stopping the strike. The Court of Appeal upheld the injunction and dismissed the union’s appeal.

In summary, those voting in a strike ballot must be allowed to vote in secret, by post at their home address and without union interference. In this case, an apparently “substantial” number of workers being balloted were able to intercept and complete their postal ballots in their delivery offices - and were encouraged to do so by the CWU. The union’s conduct, the Court decided, was sufficient to show interference with the statutory ballot process - there was no requirement to show any intimidation, coercion or fraud on their part.

While the facts are particular to a dispute involving postal workers, who had access to their mail before it reached their home address, it is a reminder that voting papers must be sent by post to the workers’ home address (or other notified address) and of the need for a secret ballot. If not, the integrity of the ballot itself is undermined, whether or not the effect on the result is immaterial.

Cadent Gas Ltd v Singh: employer due diligence and dismissal processes

S, an active trade union member and a gas engineer, was required to respond to priority gas leaks without delay. After arriving one minute late to attend a gas leak S was dismissed. He claimed the reason for his dismissal was because of his trade union activities.

H, a manager with a history of conflict with S relating to his union activities, played a leading role in the disciplinary investigation which contributed to a charge of gross misconduct being laid. The Tribunal found that the dismissing and appeals managers were not motivated by any anti-trade union prejudice, however, that did not prevent the employer being attributed with H’s anti-union motivation and his manipulation of the disciplinary process. As such, the employer was liable for S’s unfair dismissal on trade union grounds.

The case serves as a warning to employers to look beyond those making dismissal and appeal decisions, when seeking to prevent an unfair dismissal, and to consider the role of others in the process.

Verizon EWC & The Central Management of Verizon Group: employer must pay for the EWC’s lawyer

The Verizon EWC requested that the employer pay for the EWC’s legal costs associated with taking a complaint against the company to the CAC. The employer refused a fixed fee quote of £15,000 from the EWC’s lawyer.

The EWC complained to the CAC that this refusal was a breach of the EWC agreement and legislation. In particular, that the company had failed to provide the EWC with the “means required” under legislation to fulfil their duty to represent employees’ interests before the CAC.

In its decision, the CAC reiterated that it is not a body where lawyers are required. However, it went on to state that “as a general principle”, an EWC being given assistance by an expert falls within the “means required” in relation to proceedings before the CAC. The expert’s reasonable expenses must be borne by the employer and, as a result, the employer was ordered to pay £10,000 expert expenses.

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