Trade Union updates – July 2022

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TUC responds to reports that the government will prevent Union members from voting online during strike ballots

In June, the TUC responded to the government’s plans to prevent union members from using online voting during strike ballots.

For a strike ballot to be lawful it must comply with several requirements. One requirement is for a secret postal ballot.

The government-commissioned report of the Independent Review of Electronic Balloting for Industrial Action, published in December 2017, concluded that the government should not introduce electronic balloting until it was tested in a non-statutory context.

The government announced in April 2022 that it had consulted with relevant organisations and its response to the report will be issued in due course.

The TUC’s response states that electronic balloting is “just as safe as postal balloting.”

Pay increase imposed by employer was unlawful inducement  – Ineos Infrastructure Grangemouth Ltd v Jones and others and Ineos Chemicals Grangemouth Ltd v Arnott and others

The EAT has upheld the decision of an employment tribunal that the imposition of a pay increase during collective bargaining was unlawful.

The EAT upheld the decision of an employment tribunal finding that the unilateral imposition by an employer of a pay increase, when collective bargaining with the recognised trade union reached a stalemate, amounted to unlawful inducement under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Section 145 TULRCA prohibits employers from inducing their workers to bypass collective bargaining in certain circumstances.

The tribunal concluded (and the EAT confirmed) that the letter from the Respondent to the Claimants amounted to an offer for the purposes of s.145B, rather than a unilateral promise (as argued by Ineos) that did not require acceptance, as employment contracts are bilateral and can only be varied by offer, acceptance and consideration.

The tribunal had concluded that the offer had the prohibited result of the workers’ terms of employment no longer being determined by collective agreement negotiated by or on behalf of the union. The EAT confirmed that the tribunal had not erred in judgment.

The EAT also concluded that the tribunal has also not erred in judgment by concluding that collective bargaining efforts had not been exhausted when the offer was made.

The EAT also rejected arguments that the sole or main purpose of the offer had not been to achieve the prohibited result and therefore upheld the employment tribunal’s decision that the offer by the respondent had been an unlawful inducement.

Legislation laid before parliament to amend and revoke certain industrial action provisions

Legislation laid before parliament, if approved, will amend and revoke industrial action provisions.

In June 2022, two items were laid before Parliament:

  • On 24 June the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (Order)
  • On 27 June 2022 the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (Regulations)

The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022

The Order increases the limits on the maximum damages award which may be made against a trade union where industrial action is found to be unlawful. As of 21 July 2022, the limits are increased as follows:

  • Less than 5,000 members: £40,000 (currently £10,000).
  • 5,000 to 24,999 members: £200,000 (currently £50,000).
  • 25,000 to 99,999 members: £500,000 (currently £125,000).
  • 100,000 members or more: £1,000,000 (currently £250,000).

The new limits will not apply to any tort proceedings which relate to an act that began or occurred before 21 July 2022.

The explanatory notes of the Order state that the increases consider changes in the retail prices index which have occurred since the maximum amounts were set in the Employment Act 1982.

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022

If the Regulations come into force, employers will no longer be restricted to engaging temporary workers directly when industrial action is taking place.

The Regulations, if approved, will revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Regulation 7 currently prevents an employment business from supplying an employer with temporary workers to perform duties normally performed by a worker who is on strike or taking industrial action, or the duties normally performed by any other worker who has been assigned to cover a striking worker.

If the Regulation are granted the required approval by the Houses of Parliament, the Regulations will come into force the day after they are made

Government commits to publishing statutory code on “fire and rehire” in Summer 2022 and suggests other measures may be introduced outside of Employment Bill

The government has committed to publishing statutory code on “fire and rehire” in 2022.

In June 2022 Lord Challan confirmed in a parliamentary debate in the House of Lords that the government will publish the draft statutory code of practice on dismissal and reengagement in the summer.

In addition, Lord Challan confirmed that the Employment Bill will be delivered “when parliamentary time allows” but also stated “there are many other ways of delivering what were manifesto commitments than a formal government employment bill”.

Government considers trade union changes in the transport and education sectors

The government may introduce trade union changes affecting the transport and education sectors, but the RMT and Unite the union indicate resistance.

In May Transport Secretary Grant Shapp stated the government intends to introduce laws requiring minimum numbers of rail staff to work during a strike.

The proposed laws would make any industrial action illegal if those levels were not met.

The RMT and Unite the union have both stated that they will strongly resist the new laws suggested by Mr Shapps.

Separately, Nadhim Zahawi, the former Education Secretary, stated that he was exploring plans to bolster the rights of teachers who choose not to join a union.

He would like to amend the Employment Relations Act 1999 to give teachers the right to be accompanied to grievance and disciplinary hearings by an external lawyer, or representative of a body other than a union. Currently, the law only requires employers to allow staff to be joined by a trade union representative or colleague.

For more information about how our employment and education team can help you, please contact Jill Donabie on 0191 211 7933 or via [email protected].