Conference Papers from Employment Law Update: London
Roger Jeary provides a brief summary of the first Employment Law update under an all Conservative government.
11th November 2015
About the Conference
By Roger Jeary
Nerys Owen from the LRD, opened the conference as Chair and welcomed delegates. The timing of the Conference was particularly pertinent as on the previous day Parliament had debated the third reading of the infamous Trade Union Bill which had resulted in a government majority. The Bill now moves to the Lords where it is hoped further obstacles in its path will be raised.
This, of course, is just one of many recent pieces of legislation and other attacks on working people and their families and the conference provided a post-election analysis of labour law from a range of legal, academic and trade union experts.
The first speaker was the Institute’s President, Keith Ewing, who told the Conference the most important issue facing trade unionists was the Trade Union Bill. He focused on aspects of the Bill, which he described as a major onslaught on trade unions, which had three objectives.
First to diminish the power of public sector trade unions, which he described as the last bastion of trade union strength, and which was clearly associated with the government’s economic agenda.
Second it is designed to reduce the political voice of organised labour, building on the gagging act pre- election.
The third aspect was an attack on the industrial strength of trade unions through additional obstacles to organising.
Turning first to the check off provisions Keith described this as attacking the financial source of the unions. Public sector bodies are to be banned from making deductions from wages for trade union subscriptions which he described as amazing in a free society. These arrangements he told the Conference are in breach of international conventions which impose a duty to promote collective bargaining in the public sector, conventions which the UK is signed up to.
It was a clear breach of the European Convention on Human Rights which will put every public sector body in the UK in the position whereby they will be required by law to violate their legal obligations. This provides an open door for legal challenge.
On the issue of facility time, the Bill provides for regulations which will require public sector employers to provide information about the facilities they provide for trade union representatives. Looking to the future, Keith warned that such regulations could be used by the Government to require Ministers to impose a cap on both the amount of facility time provided and the percentage of the wage bill a public body can spend on trade union facilities.
Keith then turned to the political fund levy and the Bill’s requirement for members to opt in. This was a return to the post General Strike situation in 1927 when the conservative government replaced the opt out system with an opt in provision. This remained in place until 1946. Keith described this action as shifting the burden of apathy: people can’t be bothered to contract out at present, and in the future people will be apathetic about contracting in.
Also the opt in will only be valid for 5 years which will place greater strain on maintaining contributions. In addition the opt in has to be done in writing which, in effect, will require the union to go round asking members to opt in. Keith described this as a particularly pernicious clause within the Bill. It was Winston Churchill who introduced the convention in the UK that you don’t change party funding laws unless there is cross party agreement. This provision clearly breaches that convention.
Finally Keith turned his attention to the Certification Officer. This originally was an administrative role but has gradually taken on some complaints relating to union rules. The new Bill transforms this role to that of a Regulator with significantly more powers. The Certification Officer will have the power, where he thinks there “is good reason” to demand production of documents – a very low threshold for intervention. Second, he has powers to demand appearance before an inspector who will have wide powers of investigation. If a union refuses to comply the inspector can order compliance a failure to do so will be treated as a contempt of court. This extraordinary level of power raises issues under international convention ILO 87. Giving a state official powers to initiate, investigate and impose fines is a clear contravention of English law, which amounts to over intrusive state surveillance.
Professor Ewing told the conference that all these issues provide litigation opportunities and should not be take lying down.
The second speaker was Shantha David, a solicitor at Unison. Shantha presented a detailed update on TUPE following the changes introduced in January 2014. She started by reminding delegates of the purpose of TUPE (as derived from the Acquired Rights Directive) which operates to preserve the employee’s contractual employment rights following a transfer. She drew attention to the different treatment of individual terms and terms derived from collective agreements. Individual terms can be varied if there is agreement to do so or the terms of the contract allow for variation on transfer. With collectively agreed terms and conditions, where they are dynamic they are frozen at the time of transfer and collective agreements.
She explained that dynamic conditions are where future changes are contained in a collective agreement (for example pay increases). Following developments in recent case law, the transferee is not bound to accept changes covered by a collective agreement. The 2014 changes to TUPE put in a condition that the transferee can amend terms and conditions after 12 months regardless of economic or technical argument. However, following variation the employee’s contract should be no less favourable to the employee than those which applied immediately before the variation. Shantha explained that unilateral variation of terms and conditions could however give rise to a claim for constructive dismissal if it involved a substantial detrimental change in working conditions.
Turning to information and consultation within TUPE regulations, Shantha reminded the conference of the obligations upon employers to consult and inform recognised trade unions of any proposed transfer of employment. Regulation 13 sets out the information to be provided and whilst transferred employees cannot bring a claim against the Transferee, any claim has to be brought against the Transferor who can join the Transferee under Regulation15.
There then followed a question and answer discussion on the issues raised.
Nick Fry, from Bindmans LLP, started the post coffee break session with a very useful breakdown of the practical issues faced by claimants at employment tribunals. He began by examining pre-claim issues concerning settlement. This can either be done direct with the employer through ‘without prejudice’ discussions or through the early conciliation process with ACAS. ACAS early conciliation has to commence within 3 months of the claim and during the conciliation process the 3 month time limit is frozen.
Without prejudice discussions can take place prior to any claim being issued. The without prejudice communications can be by any means and are protected from becoming evidence in any subsequent tribunal claim. The relevant factors to be taken into account when seeking a settlement include merits of claim, ability of respondent to pay and the loss incurred.
Turning to time limits Nick explained the differences between unfair dismissal claims (3 months less one day) and those relating to discrimination claims where the alleged acts are continuing where the 3 months runs from the last act identified. In whistle blowing claims for detriment the 3 months relates from when the act that causes detriment happened.
Moving to pleading claims, Nick addressed issues relating to facts and those relating to the law. He stressed that facts have to be relevant to the claim so avoid including too much detail and focus on the acts which have the best chance of success. He also told the conference that account should be taken of those facts that focused on the most value for the claim. In the legal section of the claim it is important to identify the unlawful acts and apply the law to the facts. For protective claims Nick suggested that a short claim can be submitted to protect the applicant’s position when there is a shortage of time. With respect to further particulars, Nick recommended obtaining the judge’s permission to include further particulars in the claim. In complex claims where a series of acts are complained about it is useful to tabulate the claim for ease of reference.
Finally Nick flagged up issues relating to settlement. Unrealistic expectations should be managed from the start with a realistic perspective on the merits of the case and that settlement should be on a cost/benefit analysis. Judicial mediation may be offered if parties wish it but Nick was not enthusiastic about the process unless the parties are genuinely interested in settlement. He stressed that it was important to re-assess a claim once an initial response has been received and when documents are disclosed so that during the life of a claim continuous re-assessment can be helpful.
Next up was Victoria Webb from Old Square Chambers who addressed some common questions on shared parental leave. During her contribution Victoria reminded delegates of resources available on the subject which included ACAS, DBIS technical guidance and a website www.yesslaw.org.uk/shared leave/.
Victoria explained that the new provisions do not change existing rights on maternity/adoption leave rights, ordinary paternity leave and unpaid parental leave. Shared parental leave is an opt in system for births/adoption from April this year. It is a flexible system for sharing leave and statutory pay but does not increase these items. The leave can be taken any time in the first year but additional paternity leave is abolished. Ordinary paternity leave can only be taken if no shared paternity leave is taken. The new system does not offer any additional pay so take up at present is low. The system has ‘keeping in touch’ days; it has to be shared between two parents not three; both individuals must satisfy criteria to opt in; the eligibility tests for leave and pay are different.
The eligibility tests for the person taking leave require the individuals to have responsibility for the child and is not a day one right (6 months prior to 15th week before birth/notification of adoption match). The partner has to have main responsibility for the child and have been employed for at least 26 weeks of the previous 66 weeks. He/she will have to have earned at least £30 per week on average for 13 of the weeks.
On the issue of pay, Victoria told the conference there was no extra statutory pay available. To qualify for pay both individuals must satisfy different criteria. In addressing the low take up of shared parental leave, she posed the question as to whether employers should enhance SPL pay? This she suggested had certain drawbacks. Potential legal risks with discrimination complaints by men? What about employee relations? Extension to grandparents – will that impact on paternity leave? Potential danger of maternity pay being levelled down? She said that it tended to be large private sector employers who offered enhancement with some public sector organisations being given discretion to do so.
Finally, Victoria covered a number of legal arguments arising from these regulations both from the employer and employee perspectives.
Further questions and discussion followed on both topics.
Following lunch, the conference heard from Paul Scholey, a senior partner at Morrish Solicitors, on recent developments on the use of social media. Paul’s contribution looked at new statistics, new cases and whether there were any new conclusions to be drawn from these. Monthly active users (MAUs) produces enormous figures such as 1.49billion onFacebook and 400 million on Instagram. The most common age demographic is the 25- 34 group with almost 30% of users.
Turning to recent cases Paul referred to Williams v Leeds Utd FC. In this case Williams, a director of the club, had his email records trawled by the employer and was dismissed on the basis of a pornographic email 5 years ago. Williams lost his case in the High Court as the time lapse had no relevance to the act of gross misconduct. Another sports case, Mason v Huddersfield Giants, found that the club was not entitled to have dismissed Mason as a tweet had been sent by a third party but seen by thousands of followers. The judge found that the employee did not deliberately flout the conditions of his contract to behave appropriately and Mason won his case.
Other cases raised questions of impact of social media pictures and the lack of control individuals have on the posting of pictures. Old posts criticising the employer on social media can be used as evidence in a dismissal decision even though the employer knew about the postings 2 years earlier but had done nothing about it at the time. Paul explained that reputational risk cases take account of the seriousness of the remarks, how many people saw it, who saw it, whether there were any complaints and whether confidential information was disclosed?
Finally Paul outlined the principles which are important in determining such cases. Was the applicant aware of a social media policy? Length of service and disciplinary record are important and a display of genuine remorse, taking down postings immediately they are complained about. Paul made clear that recent cases had not referred to human rights to privacy and if you post onto social media then you are likely to lose claims on the basis of privacy.
The next speaker was Roger Ellis from Thompsons, Solicitors, who discussed early conciliation and tribunal fees. He started by reminding delegates that there were two reviews on fees taking place, the outcome of these are expected at the end of this year. Roger referred to the Beecroft Report which said that fees should be introduced to reduce the number of frivolous and vexatious claims to tribunals. The government justification for fees is threefold. One to transfer some of the cost to the individual; second to discourage unreasonable behaviour and encourage early settlement and thirdly to bring tribunals into line with civil courts. He argued that experience has shown that the arguments on transfer of costs do not stack up. On unreasonable behaviour the courts already have means of discouraging unreasonable behaviour and the system has done little to add to this. The statistics on early settlement show that conciliated settlements had dropped from 33% to 21% between 2012/13 to 2013/14.
Roger went on to describe the early conciliation process as a useful mechanisation to sound out some compensation for cases which might not otherwise be run. He explained that it involves a three step process – complete a form for ACAS, enter a period of conciliation, usually 4 calendar weeks, and the issue of a mandatory Early Conciliation Certificate. It is not required when making an interim relief claim. Where it is a multiple claim only one person has to submit claim for early conciliation. In all other cases a tribunal will not proceed unless an Early Conciliation Certificate is produced. The process is a voluntary one and if the applicant doesn’t wish to enter discussions for conciliation purposes they don’t have to, they can simply ask for a Certificate.
Finally Roger pointed to the disparity between settlements through early conciliation (average £1300) and the median level of settlements in tribunal hearings (e.g. Unfair dismissal £6,955). The reality of the statistics points to fees remaining an obstacle to access to justice.
The final speaker was Hannah Reed from the TUC who highlighted the impact of the Trade Union Bill on the ability of trade unions to organise strike action. She began by placing the impact of the Bill in the context of the current economic climate and the attack on public services through swingeing cuts. She said that the Bill represents a fundamental attack on the civil right to strike. The proposed thresholds are undemocratic and are against international standards and should be viewed against the government’s refusal to permit e-balloting. TUC has called on the EU Human Rights Committee to look at the Bill.
The additional aspects of the Bill such as the use of Agency Workers to replace strikers and restrictions on the right to picket have added to the impact on the ability to organise industrial action. Pressure has brought some amelioration to the Bill including removal of the need to report on the use of social media in advance, no need for pickets to wear armbands and no new criminal offences. However Hannah reminded delegates that much still remains in restricting picketing activity.
On representation in the workplace Hannah referred to the requirement of public authorities to report on time and pay of union representatives with a view to placing a cap on activities which seek to raise safety standards, promoting learning opportunities or accompanying members at grievance and disciplinary hearings.
As with Keith Ewing’s earlier comments, Hannah referred to the red tape CEO on trade unions through changes in the Certification Officer’s remit and powers and the changes to the rules on the political levy.
Hannah concluded by saying that employers’ bodies, the FT and the House of Commons Regulatory Powers Committee have all criticised the Bill.
The conference was brought to an end by Nerys Owen who thanked delegates and speakers for such an informed and interesting conference.
Chair: Nerys Owen Labour Research Department.
Keith Ewing. Institute of Employment Rights. Employment law: A post-election analyses.