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UK labour law quarterly update – March 2020

  • United Kingdom
  • Employment law

13-03-2020

Welcome to our March 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

Trade unions and Covid-19

As part of their response to Covid-19, employers are being urged to assess the risks faced by their employees and visitors and implement measures to mitigate those risks. Such measures might include the need for flexible working, reviewing policies governing business travel, holidays, sickness, caring for dependants, home working and business continuity. In some situations, staff may be asked to work overtime or in different locations.

Given that decisions may need to be taken quickly, based on the latest evidence and official guidance, those employers with recognised trade unions should ensure that they are informing and consulting now with their unions about Covid-19 measures and how best to proceed.

If the employer needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with the individual employee, or with the recognised union if collective bargaining is in place.

If the individual (or the union on their behalf) refuses to agree these changes then, depending on the circumstances, it may be possible to impose them either following consultation or through a process of dismissal and re-engagement. If a recognised union is in place then the employer should take legal advice before proceeding to implement changes without the union’s agreement, reflecting the additional risk of breaching trade union legislation (section 145B TULRCA 1992). For further information on responding to Covid-19, email marcmeryon@eversheds-sutherland.com and visit our Covid-19 Hub.

Trade union blacklisting claims on the rise during employment disputes

Over recent years, some employers have withdrawn discretionary staff benefits from those participating in a strike. Typically, this involves warning affected employees of their intention to do so and then confirming, as appropriate, the withdrawal after any strike action. In response, trade unions are increasingly arguing that compiling a list of strikers in order to withdraw benefits during industrial action amounts to blacklisting and/or a detriment under other trade union legislation (TULRCA).

Under 2010 blacklisting legislation it is unlawful to compile a list of trade union members, or a list of people taking part in the activities of a trade union, with a view to it being used by employers or employment agencies for the purpose of discrimination. Employees are protected from a detriment related to a blacklist and potential remedies include compensation and an injunction. Also potentially relevant are: protection from a detriment under TULRCA 1992; data protection legislation and more, depending on the context. In support of their arguments, unions are seeking to rely on freedom of association under the European Convention of Human Rights. For example, that participating in industrial action should be interpreted as “taking part in the activities of a trade union” under the regulations, and that protection against detriments under TULRCA should similarly be interpreted to include participation in strike action.

Such claims pose significant financial risks where large numbers of employees are involved. They are also problematic in practice as they raise concerns over other deductions during industrial action, such as strike pay deductions which rely on lists of those participating in industrial action. This is an evolving area of law and, given the rise in such arguments, we can expect tribunal decisions to follow. In the meantime, employers should be aware of the issues and take advice.

Recent labour case law

Kostal UK v Dunkley: permission to appeal to the Supreme Court, plus two IWGB appeals

The significant Kostal Court of Appeal decision, which went in favour of the employer, is being appealed by the claimants to the Supreme Court. 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.

Before the Court of Appeal, the employer had argued that the EAT’s decision effectively gave a veto to a union where the collective bargaining process had been followed. The Court accepted this argument and held that this is not what Parliament had intended. It held that provided an employer does not ask its employees to relinquish collective bargaining, it can make them an offer to change one or more of their terms of employment without breaching section 145B.

The union had previously stated that it would seek an appeal to the Supreme Court as the decision left open the possibility of employers making repeated offers direct to their staff whilst ostensibly continuing collective bargaining. However, a judgment may not be available until next year.

In addition, two appeals brought by the trade union IWGB will be heard in the Court of Appeal this year. The first involves 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 union argued that the latter controlled the terms and conditions provided by the former. The Central Arbitration Committee’s (CAC) rejected the application, deciding that that the law provides for workers to collectively bargain with their direct employer only. The appeal is due to be heard by July 2020.

The second 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 on 7 April 2020.

Verizon EWC & The Central Management of Verizon Group (2): the limits of informing an EWC

The employer’s EWC complained to the CAC about the way the employer informed and consulted it over a forthcoming restructuring over a three month period. For example, that the information provided was insufficiently detailed and explained to allow the EWC to provide an opinion, that the questions it had raised had not been answered by the employer and, as a result, consultation with the EWC could not yet commence until sufficient information had been provided. In contrast, the employer was of the view that the information and consultation process had been completed and that the EWC’s requests for additional information were aimed at challenging management’s decisions which was not within their competence.

For employers with EWCs, the analysis by the CAC in this decision provides helpful guidance when approaching the information and consultation process. It rejected the EWC’s complaints, finding that the information provided by the employer was sufficient. In particular, the CAC stated that, in order to fulfil its role, an EWC must understand a decision and the rationale for that decision. However, this does not mean that the EWC should feel unable to fulfil its role without having access to the full range of information it considers it would need were it in the shoes of the employer as decision-maker: “.. it is not the role of the [EWC] to make an independent assessment of whether a business decision is sound nor, therefore, is there an obligation on the Employer to provide proof to persuade the [EWC] of the viability of any such decision to the Complainant’s satisfaction.”