UK: Industrial Relations

Collective rights and wrongs

Nick Huffer of Clarks asks whether the draft Employment Relations Bill goes far enough in addressing problems with the UK’s trade union laws

Since 1997, with the coming to power of a Labour government and participation in the European Social Chapter, a whole raft of changes in employment legislation has come into being - and will continue to do so - giving substantially enhanced individual protection to employees and workers. This is particularly so in the discrimination field.

The EC has, moreover, via the Information and Consultation Directive (as well as the European Works Council Directive) set down minimum standards for informing and consulting employees collectively on a wide range of matters. Europe has, however, preferred not to legislate on trade unions, leaving this political hot potato in the hands of individual member states. The reintroduction of compulsory trade union recognition laws into the UK was very much the key reform of New Labour’s "Fairness at Work" programme and the Employment Relations Act 1999, and did not emanate from a European Directive.

So where are we now on collective employment relations in the UK, and are we safe from a resurgence of 1970s-style trade union power?

Balance of power?

The government’s current policy, witnessed by its review last year of the 1999 Employment Relations Act, is to make the existing framework more efficient, rather than to make any further changes to the balance of power between employers and unions. Accordingly, the draft Employment Relations Bill, due to come into effect this October, does not bring in any radical changes.

However, there are many in the union movement, in particular the new brand of trade union leaders, who are far from happy with the current compromise. Even big unions like the TGWU, AMICUS and the GMB finds themselves at odds with Labour policy, particularly over public sector reform. For the first time, there have been threats of concerted and coordinated industrial action by unions in an attempt to get around the unpopular secondary industrial action laws Labour has sworn to retain.

Few are forecasting a return to 1970s-scale industrial action or the mass picketing witnessed in the 1980s. However, a worrying development, which may be a trend, is a return to unballoted unofficial industrial action, which was very much part of 1970s industrial relations scene. The high profile unofficial action taken by postal workers and by BA staff last year is a key example of this. Such action can cause maximum damage to an employer, happening without warning, let alone a ballot.

The legal minefield into which both unions and employers step in an industrial dispute is a large part of the problem here. The Employment Act 1990, introduced under the last Conservative government, introduced measures aimed at preventing unofficial industrial action. These made unions potentially liable if industrial action was authorised or endorsed by any union official, including shop stewards. Accordingly, the union could be held liable in damages for consequential losses resulting from such action, thereby providing an incentive for it to stop the action going ahead.

The problem in practice is that it can be very difficult, in the short period of time that unballoted industrial action often takes place, and in the heat of the moment, to determine whether a shop steward has authorised or endorsed industrial action or not. Even the union’s full-time official may be in the dark. Where action is short-lived, by the time the employer has established whether the action is official or not, it is likely that the workers have already returned to work. There is also the added problem of trying to establish who was participating at the relevant time and who was not.

It is vital for all concerned to know what the position is, as the dismissal regime is different depending on whether the action is official or not. An employer can dismiss any number of unofficial strikers with impunity, but where action is official, an employer can fairly dismiss only by dismissing all of those participating. However, either way, the dismissals must take place whilst the employees are still participating in the action. Once an employee returns to work, having contributed to the disruption, their usual unfair dismissal rights apply again. This encourages employers to focus on dismissal at the earliest possible stage and ask questions later. This is hardly a practical way to resolve difficult employment relations.

Any sensible employer will naturally wish to try to get its workforce back to work through negotiation with union representatives, using the potential sanction against the union itself of a damages claim if the action is official. However, the legislation allows a union to disclaim all liability for strike action called by its shop stewards, with effect from the outset of the action by serving notice of repudiation of the action through the union’s executive, president or general secretary. Hence, that sanction is often a mirage.

Take the example of the recent case of Balfour Kilpatrick Ltd v Acheson [2003]. In this case, there was a dispute about whether working conditions entitled the workers, who were electricians, to go offsite on health and safety grounds. There had been heavy rain on a construction site, and it was said that there were insufficient facilities for workers to dry out their work clothes. This is a fairly typical scenario in terms of a collective dispute that should be capable of swift resolution through negotiation. However, after a couple of days of refusing to work, the electricians returned, only to claim that their conditions had not improved sufficiently and, at 1pm, they left the site again. As they did so, they were given letters of dismissal by their employer. By this time, although the AEEU shop steward had originally endorsed the action, thereby protecting members against selective dismissal, he had subsequently, under instruction from the union leadership, repudiated the action. The shop steward had read out the repudiation letter from the union leadership in the canteen, instructing members to return to work. The letter was also put on the clocking station notice board and faxed to the employers. The employers therefore felt it was safe to dismiss workers who were continuing to participate in the action.

The Employment Appeal Tribunal overturned [?] the employment tribunal’s finding that the workers had been unfairly dismissed for bringing health and safety concerns to the employer’s attention. It found that taking industrial action is not a reasonable means of doing this. However, the employer had not complied with the Trade Union and Labour Relations (Consolidation) Act 1992 in that it had not waited, as required, until the end of the next working day after the day of repudiation before dismissing and then later re-engaging some of the workers (the 24-hour period of grace). In any event, the action had not been effectively repudiated, as the union had failed to comply with the requirement under the Act to do its best to give individual notices of repudiation to those participating. Hence, the workers had been dismissed whilst still participating in official industrial action. As the employer had selectively re-engaged, and therefore not dismissed all the workers, this made the dismissals unfair.

This case demonstrates how the law governing industrial disputes continues to hark back to the days before unions had to ballot members over industrial action to escape liability for the so-called "industrial torts". Sometimes, it can all end up in a cat and mouse game revolving around technical legal discussions about whether industrial action is official or unofficial. The law is structured, from a union’s perspective, around its right to call its members out on strike (whether balloted or not), and from the employer’s perspective, around the right to dismiss in response. This approach to industrial relations is more at home in the 19^th than the 21^st century.

The Employment Act 2002 introduces statutory dispute resolution procedures for individual employment disputes with effect from October this year. Would it not be more sensible, and in keeping with a partnership approach to employment relations, to apply a similar procedure to collective disputes that end up in unballoted industrial action? Such an approach could distinguish between properly balloted action - in which case workers would be fully protected against dismissal - and unballoted action - in which case workers would have protection against dismissal only where the employer failed to take reasonable steps to resolve the dispute. This could be framed so that workers would have little or no protection if they failed to use established disputes procedures before participating in unballoted action.

In this way, the law would focus on the cause of the dispute, not the symptom. It is a shame that the government’s review of the 1999 Act did not take this sort of in depth approach to curing the ills in the current system.

Balfour Kilpatrick Ltd v Acheson
[2003] IRLR 683

Wilson and Palmer v the UK
[2002] IRLR 568

A key feature of the Employment Relations Bill is the increased protections which it offers to individual workers. At present, workers are protected against detriment and dismissal on grounds related to union membership or activities under sections 146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). To reflect the need to change the law following the European Court of Human Rights case of Wilson and Palmer, there will be a new section 145A giving workers the right not to have an offer made to them for the sole or main purpose of inducing them:

• Not to be or become a member of an independent trade union; or
• Not to take part in the activities of an independent trade union or make use of its services.

Under section 145B, workers will also have the right not to be offered anything which, if accepted, would result in their terms of employment no longer being determined by collective agreement.

Interestingly, the Government has incorporated into the Bill at a late stage protections for workers against intimidation and inducement during a recognition ballot. It has also introduced the concept of "unfair practices" in recognition ballots, which would apply to unions as well as to employers. These protections are capable of wide interpretation, although they do not introduce the concept of unfair labour practices, which is what the unions had wanted. Such practices, the unions argue, should cover the "threat" of closing a site in the event of a recognition bid succeeding or a staff association being established.

The Government stresses that the intention is not to stifle campaigning activity. However, if the amendment is passed, employers will need to excise greater care in running anti-recognition campaigns once a ballot is called by the Central Arbitration Committee. Interestingly, these rights may create something of an anomaly, in that there are no similar protections for workers during an industrial action ballot.

It is also notable that the Government has introduced into the Bill at a late stage a clause to reverse the burden of proof in trade union dismissal cases under section 152 of TULR(C)A. This being one of the automatically unfair dismissal categories, the burden is presently on an employee with less than one year’s service to prove that the reason for dismissal was on union grounds. If the amendment is passed, where an employee brings such a claim, it will be for the employer to show what the reason for dismissal was. This would be likely to make such claims more common in future.

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