UK: Plain Speaking - or Victimisation? (Employment Update)

Last Updated: 31 January 2005
Article by Christopher Booth

Originally published December 2004

Once a dispute is submitted to litigation, courts are anxious to protect parties from exposure to harm as a result. In discrimination law, the issues are so sensitive and the opportunities for retaliation so easy, that a special complaint of victimisation has been introduced to protect claimants and witnesses. As a result, employers have to act with particular care once a claim has been brought, as the recent case of St Helens Metropolitan Borough Council v Derbyshire shows.

The case concerned 500 or so school dinner staff employed by St Helens Council who claimed equal pay with the Council's road sweepers. Most settled their claims but 39 carried on to Tribunal. One of the Council's managers thought he should point out the results of their actions, should they succeed - school dinners would be priced out of the market and the consequences for them, their colleagues and for the service as a whole would be very serious. He wrote two letters, one to all the dinner staff and one specifically to the 39, warning that jobs would have to go.

The 39 claimed that sending the letters amounted to victimisation. They had been less favourably treated than colleagues who had settled their complaints. The letters caused distress and anxiety and exposed them to criticism from their colleagues who had settled. The Tribunal, and Employment Appeal Tribunal, agreed, ruling that this amounted to a detriment, imposed because the claimants had brought proceedings. The letters were not simply a shot in the litigation process; they were an improper attempt to intimidate the claimants into settling or withdrawing.

Practical Implications

Offering a carrot in order to settle a claim is legitimate; offering a stick is not. So although to an employer it may seem common sense to point out to a party the consequences of their legal action, to a Tribunal it may look like victimisation. To many managers this must seem like negotiating with one hand tied behind their backs, but threats, even veiled and indirect, should be avoided.

In addition, in this case the Council had written directly to its employees, rather than through their union representatives who would have been better able to withstand, deflect and explain the pressure the letters brought to bear. Clearly, in the legal arena, it is crucial to word all communications bearing even indirectly on a case through legal advisors. Otherwise, as the St Helens case shows, employers risk being subject to additional claims.

Collective Bargaining and Union Recognition

One of the major problems that bedevilled the previous attempt to introduce a statutory union recognition procedure, back in the 1970's, was inter-union rivalry. Now, following decades of union mergers and the emergence of fewer, larger unions, the scope for such rivalry is less but has not gone away.

A recent decision of the Central Arbitration Committee concerned such an issue. In that case the CAC rejected the TGWU's claim to start the statutory recognition process at ASDA's Falkirk depot because the employer already had a 'partnership agreement' in place with the GMB union.

The case turned on the definition of ‘collective bargaining’ in section 178 of the Trade Union and Labour Relations (Consolidation) Act. Historically, the union movement fought for a wide definition of collective bargaining, both for recognition purposes and so that industrial action would be legally protected. Thus pay and terms and conditions of employment are included within section 178, but so are union facilities and procedures, matters of discipline and individual representation rights. Under the statutory recognition procedure, an agreement recognising one union precludes an application for recognition from another. ASDA' s agreement with the GMB specifically excluded collective bargaining on pay and terms and conditions but provided for negotiation on union facilities and on disciplinary procedures, both of which are included within S178. In addition, there was evidence of such negotiations taking place. Did this more limited ‘Partnership Agreement’ count as a ‘collective agreement’ and so prevent the TGWU's bid for recognition going ahead?

The Central Arbitration Committee ruled that it did: recognition for one purpose will prevent an application for recognition from another union for other purposes.

Practical Implications

Where recognition is granted under the statutory procedures, a union is entitled to conduct collective bargaining on matters relating to pay, hours and holidays. This decision of the CAC highlights the fact that an employer who has a collective agreement in place providing for negotiations on any of the matters listed in S178 can avoid compulsory collective bargaining on issues of pay, hours and holidays.

Do You Need To Know…?

Detriment and the 48 hour week

The law protects employees who exercise their right to work no longer than a 48 hour average week under the Working Time Regulations from suffering a detriment as a result. If such employees reduce their hours down to 48 hours, can their salary be reduced accordingly? The recent case of Clamp v Aerial Systems provides strong support for the common sense view that such a reduction would be a consequence of the change, and not a detriment imposed because of the change. As such, it would not be unlawful.

Privacy at Home: a Human Right?

The employer suspected the employee, who worked from home in a remote location, was submitting false call out claims. The employee's home was put under surveillance, and the employee was subsequently dismissed. Was the dismissal unfair because the employer relied on information obtained in apparent breach of the right to respect for private life, contained in Article 8 of the European Convention on Human Rights? Deciding that it was not, the Scottish Employment Appeal Tribunal ruled by a majority that the response from the employer was proportionate to the gravity of the offence alleged, and followed consideration of other, less intrusive, options.

Length of Service and Sex Discrimination

The Court of Appeal has referred to the European Court of Justice the question raised in Cadman v HSE of whether using length of service as a factor in pay scales, which has a potentially indirectly discriminatory effect on women, requires specific justification. The question (discussed in the February 2004 Bulletin) has potentially major implications for any employer rewarding length of service.

Stress at Work: New Guidance

Both the HSE and ACAS have recently issued fresh guidance on how to avoid, reduce and manage stress at work. The guidance can be found on their websites: see www.acas.org.uk/publications/B18.html and www.hse.gov.uk/stress

Cases referred to in this update: St Helens Metropolitan Borough Council v Derbyshire [2004] IRLR 836; Transport and General Workers Union v ASDA [2004] IRLR 836; Clamp v Aerial Systems EAT 0266/04; McGowan v Scottish Water EAT 0007/04; Cadman v HSE [2004] EWCA 1317.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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