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Coronavirus - labour law update – UK

  • United Kingdom
  • Coronavirus - Workforce issues
  • Employment law

17-06-2020

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

Coronavirus and labour law - news round-up

Coronavirus: should employers set up a standing body of elected employee representatives?

Employers reopening their workplaces and adapting their operations in response to coronavirus may encounter collective consultation obligations. For example, where collective redundancies (see further below), TUPE, health and safety issues and some contractual changes are involved.

While the above legal obligations to inform and consult differ, there are some common themes. In broad terms, where the employees are represented by recognised trade unions, the employer must consult with the trade union.

In the absence of a recognised trade union, the employer has the choice of consulting with directly elected representatives (elected by employees affected for the purpose of this consultation) or an appropriate, pre-existing body of elected or appointed representatives. Such employers will need to consider:

  • whether any pre-existing body of employee representatives has authority, for example, in its constitution, to engage in such consultation
  • if not, and employee representatives must be elected, how long this will take and how to conduct a fair election where employees are working remotely or furloughed

In health and safety matters, the employers may alternatively consult with employees directly.

Drawing on the experience of the pandemic to date, some employers are reviewing whether to put in place a permanent works council or staff forum for their non-unionised employees, to support engagement and address collective consultation duties going forwards.

To ensure the right decisions are taken for the longer term, not just the pandemic, we recommend taking advice. On the one hand, a successful staff forum can support constructive employee feedback and dialogue. However, in order to maintain credibility it is important that any such forums do not wither on the vine or become “talking shops”. Success requires leadership, planning, training and a sustained financial and management/employee commitment. Care should also be taken, if setting up a forum now, to avoid triggering false rumours of imminent redundancies and restructuring. For further information and advice, contact our specialist Labour Law team by emailing thomasplayer@eversheds-sutherland.com.

Collective redundancy consultation in a virtual world

Despite the government’s furlough scheme and other support, the ongoing impact of the pandemic will inevitably leave some employers with no alternative but to consider whether redundancies are necessary to preserve and safeguard the overall business. In so doing, they will encounter a number of new practical challenges, including how to inform and consult furloughed employees or those working remotely.

For example, some practical and legal issues requiring careful review and planning include: balancing legal obligations to inform and consult on redundancy proposals with, potentially, a high degree of uncertainty resulting from the current exceptional circumstances; preparing for longer timescales reflecting the practicalities of a remote consultation; ensuring confidential personal and business data are safeguarded where representatives and affected employees are at home; checking eligibility to recover wage costs from the furlough scheme; considering whether pre-existing redundancy selection criteria meet the needs of an organisation changed by coronavirus; conducting effective 1:1 and collective consultation digitally; electing employee representatives and supporting them in their role when all employees are furloughed or working remotely, and more. For further information, read our Redundancies in a virtual world briefing and listen to our webinar recording.

Trade union membership and organising trends during coronavirus

The annual BEIS trade union membership statistics were published last month and recorded a 91,000 rise in membership in 2019. As a proportion of UK employees, trade union membership rose slightly to 23.5%, from the low of 23.3% in 2017, with four-fifths of the overall increase in the public sector. The rise was driven by an increase in female members which stands at its highest point since this series of statistics began in 1995.

More recently, trade unions have reported recruiting thousands of new members during the pandemic. In part, this will reflect their increased COVID-related activities. Recent examples include:

  • resisting changes to employment terms and benefits during furlough
  • threatening legal action where redundancies are proposed
  • scrutinising health and safety measures for those working through the pandemic or returning as workplaces reopen
  • demanding full pay for workers during self-isolation
  • campaigning for essential workers to receive pay rises
  • surveying members about their experiences during the virus
  • conducting media campaigns, such as alleging employer failures to provide PPE or manage social distancing
  • encouraging members to blow the whistle over health and safety concerns at work
  • distributing organising flyers to workplace that have stayed open during the pandemic

At the same time, unions have contributed to government policy, such as the design of the furlough scheme and the ‘COVID-secure’ workplace guidance. It remains to be seen whether recent increases in membership will be sustained, given that previous recessions generated new joiners who failed to keep up subscriptions or who subsequently lost their jobs.

Eversheds Sutherland UK labour law publications, events and training