A Chronology of Labour Law 1979 – 2023

• Definition of lawful picketing restricted to own place of work

• 80% ballot needed to legalise a closed shop

• Funds offered for union ballots

• Restricted right to take secondary action

• Code of practice (six pickets)

• Repeal of statutory recognition procedure

• Restricts unfair dismissal and maternity rights

• Unfair dismissal rights from 1 year to 6 months in companies under 20

• Further restrictions on industrial action – eg. definition of trade dispute

• Further restricted action to ‘own’ employer

• Employers able to recover damages in tort for industrial action

• 80% rule extended to ALL closed shops every 5 years

• Compensation for dismissal because of closed shop

• Removed union only labour clauses in commercial contracts

• EC elections every 5 years by secret ballot

• Political fund ballots every 10 years

• Secret ballots before industrial action

• Introduced new criminal offences in relation to picketing

• Unions to compensate members disciplined for non-compliance with majority decisions

• Members can seek injunction if no pre-strike ballot

• Union finances to be open to inspection

• Unions prevented from paying members’ or officials’ fines

• Action to preserve post entry closed shop made unlawful

• New restrictions on industrial action and election ballots

• Ballots for separate workplaces

• Ballots for non-voting EC members

• Election addresses controlled

• Independent scrutiny

• Establishment of CROTUM

• Tribunal pre-hearing review and proposed deposit of £150

• Removal of restrictions on the work of women and young workers

• Exemption of small employer from providing details of disciplinary procedures

• Restricts time off with pay for union duties

• Written reasons for dismissal now require 2 years’ service

• Redundancy rebates abolished

• Abolition of training commission

• Attack on pre-entry closed shop – unlawful to refuse to employ non-union member

• All secondary action now unlawful

• Unions liable for action induced by ANY official unless written repudiation using statutory form of words sent to all members

• Selective dismissal of strikers taking unofficial action

• Extended power of CROTUM

• Brings together all collective employment rights including trade union finances and elections; union members’ rights including dismissal, time off; redundancy consultation; ACAS, CAC and CROTUM; industrial action legislation

• Does not cover individual rights like unfair dismissal, redundancy pay, maternity etc (these are covered by 1978 EPCA)

Trade Unions:

• Creation of Commissioner for Protection Against Unlawful Industrial Action

• 7 days notice of ballots and of industrial action

• Members to be involved in ballot to be identified

• Attack on Bridlington procedures

• Written consent for check-off every three years

• Financial records, including salaries, to be available

• Checks on election ballots

• Independent scrutiny of strike ballots

• All industrial action ballots to be postal

• Postal ballots on union mergers

• New powers for Certification Officer to check union finances

• Higher penalties against unions failing to keep proper accounts

• ‘Wilson/Palmer’ Amendment (sweeteners to those moving to individual contracts)

Individuals (EC inspired):

• Maternity leave increased to 14 weeks with no length of service requirement

• Right to written statement within 8 weeks for those working over 8 hours a week

• Unlawful to dismiss H&S rep in course of duties AND those walking off unsafe site

• Right of individual to challenge collective agreement in contravention of equal treatment terms

• Changes to Transfer of Undertakings Regulations

• Changes to redundancy terms (consultation)

Miscellaneous

• Abolition of Wages Councils

• Changes to Tribunals and EAT procedures

• Career services out of Local Authority control

Employment Particulars

• Written statement of employment particulars required setting out terms and conditions of employment

• May include references to applicable collective agreements

• Must specify disciplinary rules and grievance procedures

• Protection of Wages and Guarantee Payments

• Unauthorised deductions not permitted subject to exceptions, including participation in industrial action, overpayment, cash shortages or stock deficiencies

• Pay for workless day guaranteed to maximum per day

• Sunday Working: Shop and betting workers may refuse Sunday work if employed prior to Sunday legislation commencement date, those employed after may opt out with three months notice

• Protected Disclosures: Amendments from Public Interest Disclosure Act 1998 provide protection for disclosure of specified matters including worker health and safety and damage to environment

• Detriment in Employment: Protection from employer retaliation including health and safety activities, refusal to carry out unsafe work, refusal to work Sundays if protected worker, refusal to work contrary to Working Time Regulations 1998, carrying out representative duties, taking family or domestic leave

Family, Domestic, Maternity, Parental and Other Leave

• Entitlement to time off for to make domestic arrangements or look for work if declared redundant

• Time off for medical appointments for pregnant employee, maternity leave no less than 18 weeks and parental leave up to 13 weeks, employment protection and right of return

Termination and Unfair Dismissal

• One month minimum notice period for termination or resignation, may agree to pay in lieu, employee entitled to written statement of reasons for dismissal

• Must be employed one year for unfair dismissal complaint, subject to exceptions such as for taking protected industrial action, exercising health and safety rights, acting as employee representative

• Complaint to be within three months of dismissal

• Compensatory award cap

Redundancy Payments

• Eligibility two years continuous service, normal retiring age excepted, claim must be made within six months, weekly cap

• Entitlement where employer ceasing to carrying on business for which employee employed or lay off/short time for four consecutive weeks, six in thirteen weeks

Employment Status

• Introduction of ‘Limb B worker status’ [s230(3)(b)]

• Employment [then “industrial”] tribunals to cover all matters arising out of employment contracts along with specified duties set out in various Acts

• Tribunal to consist of a chair and representative of employee and employer interests, subject to agreement otherwise

• Person may appear in person or with representative

• Tribunal panel may conduct own review of decision in limited circumstances

• Employment Appeal Tribunal to hear appeals from tribunal decisions on questions of law only under Employment Rights Act 1996, also appeals under various other Acts

• Cases heard by judge and members appointed equally from employee and employer interests

• Renames industrial tribunals as employment tribunals

• Amends Trade Union Labour Relations (Consolidation) Act 1992 to provide for complaints to employment tribunal over employer deductions for political fund where objections or exception, also to provide for non-mandatory arbitration process for unfair dismissal complaints under TULRA through Advisory, Conciliation and Arbitration Service (ACAS)

• Protects persons making disclosures in public interest through amendments to Employment Rights Act 1998 and Trade Union Labour Relations (Consolidation) Act 1992

• National minimum wage for those over 18, subject to exceptions for training, volunteer work, residents in charities and religious communities

• Low Pay Commission to recommend minimum rate changes and coverage

• Implements EC Directive with respect to maximum working hours (subject to individual agreement); rest breaks, annual leave

*Does not apply to specified sectors, including air, rail, road and sea, armed forces and police

• Subject to modification under collective agreements

• Give effect to European Convention on Human Rights with respect to specified provisions

*Protection from discrimination by public authority, including those whose functions are of a public nature

• UK legislation (primary and subordinate) to be read consistent with Act

• Provisions to fast-track changes to legislation found incompatible

• Court remedy declaration and compensatory; Parliament to make any legislative changes

• Minister must make statement of compatibility with Act on introducing new legislation

• Amendments to Trade Union Labour Relations (Consolidation) Act 1992

• Recognition and negotiation procedures for employers with at least 21 workers, establishment of bargaining unit

• Derecognition from loss of trade union independence or majority support of bargaining unit

• Complaint process for use of political funds and breach of union disciplinary, electoral or other internal rules

• Dismissal for participation in official industrial action deemed unfair within a protected period of 8 weeks

• Ballot and notice provisions for strike or industrial action

Disciplinary and Grievance Hearing

• Employee permitted to bring companion, who may be trade union official or representative to any hearing

• Disciplinary hearing and grievance hearing defined

Other Provisions

• Part-time workers to be treated no less favourably; non-enforceable Code to eliminate discrimination

• Abolishes offices of Commissioner for Rights of Trade Union Members and Commissioner for Protection Against Unlawful Industrial Action

• Funds to be provided to assist in developing employment partnerships

• Regulation of employment agencies

• Regulation with respect to treatment of employees in transfer of undertakings (EC)

• Amends Employment Rights Act and TULRA to prevent complaint over unfair dismissal if action for purposes of national security

• The adoption of ‘Limb B’ worker status for the purposes of the interpretation and application of the rights in TULR(C)A 1992 [s.296]

• Establishes Commission to work towards elimination of discrimination against disabled persons and conduct ongoing review of Disability Discrimination Act 1995

• Action plan may be established to remedy discrimination;

• Commission may apply for injunction where discrimination persistent

• Consolidates investigatory powers including surveillance and interception of communications (public and private)

• Designed to ensure compliance with human rights requirements

• an increase in the period of maternity leave to six months’ paid maternity leave followed by up to six months’ unpaid leave.

• the introduction of a new right to two weeks’ paternity leave paid at the same standard rate as SMP. This is in addition to the existing right to 13 weeks’ parental leave.

• similar entitlements for adoptive parents (who have no right to paid leave at present).

• award costs against a party’s representative for conducting the proceedings unreasonably (though ministers have made it clear that this will not apply in the case of representatives of ‘not-for-profit’ organisations, eg trade union officers); and

• order one party to make payments to the other in respect of the time spent in preparing for a case.

• amended rules governing employers’ handling of parental leave and pay issues.

• award costs against a party’s representative for conducting the proceedings unreasonably (though ministers have made it clear that this will not apply in the case of representatives of ‘not-for-profit’ organisations, eg trade union officers); and

• order one party to make payments to the other in respect of the time spent in preparing for a case.

• The Act also provides the basis for amending employment tribunal rules to introduce a fixed period for conciliation by the Advisory, Conciliation and Arbitration Service (ACAS), and a tougher approach to so called “ weak” cases.

• The Act introduces a new statutory right to paid time off work for trade union ‘learning representatives’.

• measures to tackle the intimidation of workers during recognition and derecognition ballots by introducing rules which define improper campaigning activity by employers and unions.

• measures to improve the operation of the statutory recognition procedure. For example, the appropriate bargaining unit; clarifies the “topics” for collective bargaining; allows unions to communicate with workers at an earlier stage in the process, and clarifies and builds upon the current legislation relating to the supply of information to the Central Arbitration Committee and the Advisory Conciliation and Arbitration Service (Acas);

• provisions to increase the protections against the dismissal of employees taking official, lawfully-organised industrial action by extending the “protected period” from 8 to 12 weeks; exempting “lock out” days from the 12 week protected period;

• procedural steps to resolve industrial disputes and measures to simplify the law on industrial action ballots and ballot notices;

• measures to widen the ability of unions to expel or exclude racist activists and others whose political behaviour is incompatible with trade union membership.

• a power for the Secretary of State to make funds available to independent trade unions and federations of trade unions to modernise their operations (see Written Statement of 10 February 2004);

• measures to implement the European Court of Human Rights judgment in the case of Wilson & Palmer, which ensure that union members have clear rights to use their union’s services, and cannot be induced by employers to relinquish essential union rights or dissuaded from seeking union recognition;

• measures to improve the operation of some individual employment rights such as a clarification of the role of the companion in grievance and disciplinary hearings; and technical changes to flexible working legislation concerning protections from unfair dismissal;

• new protections for employees who are dismissed or who suffer other detriment because they are summoned or have been away from work on jury service;

• a power to make regulations to introduce information and consultation in the workplace (in Great Britain and Northern Ireland), by implementing the EC Directive on Information and Consultation (Council Directive 2002/14/EC) The Government consultation on the draft regulations closed on 7 November 2003. The Government’s response sets out the findings of the consultation;

• measures to improve the enforcement regime of the national minimum wage.

• measures to give the Certification Officer greater powers to strike out weak or vexatious claims;

• measures to improve trade union regulation, and a power to allow the Secretary of State to include non-postal methods of balloting in statutory union elections and ballots.

• The Regulations do not impose a set method for employers to inform and consult their employees nor does it give a right for recognised trade unions to be consulted automatically under this legislation.

• The requirements to inform and consult employees are triggered either by a formal, written request for an information and consultation agreement from at least 10% of employees, with a minimum 15 and a maximum of 2,500, or where an employer chooses to start negotiations.

• In either case the employer will need to make arrangements to allow the employees to elect representatives to negotiate the agreement.

• The regulations impose £5,000 fine on employers who refuse to consult or inform under this legislation.

Following discussions between unions and labour ministers, the “Warwick Agreement” set out agreed policy proposals including:

• An end to the two-tier workforce across the entire public sector

• 8 public holidays plus four weeks annual leave – but he will keep the opt-out

• Family Friendly policies- improved time off to attend to a sick relative

• Flexible working for workers caring for a disabled family member

• Gangmaster regulation and an end to exploitation of migrant workers

• Will support an EU Directive on Agency Workers next electoral term

• Will introduce legislation this term on Corporate manslaughter

• Steps to close the equality gap

• The introduction of sectoral bargaining in trial sectors

This fell short of trade union demands for repeal of anti-trade union (Tory) laws.

• repeal the existing statutory dispute resolution procedures and related provisions about procedural unfairness in dismissal cases

• confer discretionary powers on employment tribunals to adjust awards by up to 25 per cent if parties have failed unreasonably to comply with a relevant Code of Practice

• make changes to the law relating to conciliation by Acas

• amend tribunals’ powers by which they may reach a determination without a hearing

• allow tribunals to award compensation for financial loss in certain types of monetary claim

• introduce a new method of calculating arrears

• replace enforcement and penalty notices with a single notice of underpayment which will include a civil penalty against employers who have not complied with NMW requirements

• increase the civil enforcement powers available to officers enforcing the NMW

• make offences under NMW Act 1998 triable in the Crown court or the Magistrates’ court

• increase the criminal investigative powers available to officers enforcing the NMW

• provides that, where an offence has been committed by partnerships in Scotland, any individual partners who are culpable may be prosecuted as well as the partnership itself

• Section 18 allows officers enforcing the NMW and officers enforcing employment agency standards to share information for the purpose of their respective enforcement functions.

• Section 19 amends trade union membership law in line with the ruling of the European Court of Human Rights on Aslef v UK.

• Amendments made to existing Minimum Wage regulations so employers could not include tips and gratuities when calculating wages.

• These regulations were a heavily diluted form of German style worker participation. The UK approach under these regulations required little more than employees of large companies be given general information on progress and strategy.

The Act was a consolidation, rationalisation, harmonisation and revision of various existing employment law acts and regulations including, The Equal Pay Act 1970, The Sex Discrimination Act 1975, The Race Relations Act 1976, The Disability Discrimination Act 1995 and various Employment Equality regulations which related to Religious beliefs, sexual orientation and age.

Broad Changes

• The Act consolidated the disparate groups protected under these Acts and statutory instruments as individuals with ‘protected characteristics.’
• Direct discrimination is dealt with under section 13 of the Act, and applies to all individuals with protected characteristics and Indirect discrimination was given a clear definition in section 19.
• Employees mistakenly perceived of having a protected characteristic, and employees associated with someone with a protected characteristic who as a consequence are treated less favourably by their employer were given a measure of statutory protection.
• Tribunals were given the power to make recommendations for the benefit of members of the workforce, other than the applicant.
• The public sector equality duty was established. The duty applies to public bodies, and to other organisations, and requires authorities “when making decisions of a strategic nature about how to exercise its functions, to have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage”.
• Statutory questionnaires introduced under s138 sent to employers by prospective tribunal claimants who considered that they had been discriminated against were of considerable help to claimants, but were withdrawn in 2013 under the ERRA 2013.

Harassment

• Protection against harassment by third parties was extended to all protected characteristics, but employer liability for third party harassment was withdrawn by the ERRA 2013.

Race Discrimination

• Caste discrimination can be incorporated under the Act if a Minister makes an order to include ‘caste’ within the definition of race. In 2016, the Conservative government announced that it was to open a consultation on the matter.

Gender Equality

• Gender Pay Gap Information under s78 was implemented in 2016, and the first reports from firms with 250 or more employees are required to be published in April 2018.
• Permits claims for direct gender pay discrimination without a comparator.
• Pay secrecy clauses became unenforceable.

Sexual Orientation

• It is no longer a requirement for medical supervision in relation to gender reassignment to get protection for discrimination and harassment, and the ‘association’ aspect provides for a direct discrimination claim if you are the partner of a transsexual.

Disability

• The complicated concept of ‘disability related’ discrimination, was replaced by ‘discrimination arising from disability.’ The old requirement to show unjustified less favourable treatment became a requirement only to show that unfavourable treatment has been meted out ‘because of something arising in consequence of [the claimant’s] disability.’
• There is no longer any need for a comparator and Claims can only be brought by those who are themselves disabled.
• Employers are permitted to justify disability related discrimination by showing that it is a proportionate means towards a legitimate end.
• A failure in certain circumstances by an employer to make physical ‘reasonable adjustments’ to the workplace, and to provisions, criteria and practices which put an ‘interested disabled person’ at a ‘substantial disadvantage’, or to fail to provide certain auxiliary aids or services can now amount to unlawful discrimination.
• The Act restricted the scope for employers to ask about disability and health, and to require applicants to undergo health tests during the recruitment process.
• However, there is an exception where an employee is required to undertake duties for which a pre-employment health check is essential, and health checks after an offer of employment has been made, are not subject to restriction.

• These ‘fine tune’ the disability provisions of the Equality Act, revoking and revising the Disability Discrimination (Meaning of Disability) Regulations 1996.
• A disabled person must – although there are certain exceptions relating to those with severe disfigurement, HIV, cancer, and MS – ‘have a physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities. Any discrimination complained of under the Act must arise from that disability.
• Part 2 of the Regulations excludes certain categories from this definition, including Alcoholism, kleptomania and hayfever which are not deemed to be ‘impairments.’
• It also clarifies the status of those with various severe ophthalmological conditions as ‘disabled persons’ within the meaning of the Act.

• These regulations introduced the concept of shared parental leave. They permitted fathers and same sex partners to take up to 26 weeks Additional Paternity Leave (‘APL’) if the mother or primary adopter has returned to work, in addition to the 2 weeks Statutory Paternity Leave (now called Ordinary Paternity Leave) already available.
• The regulations applied to employees only, and the mother must have been entitled to maternity leave, Statutory Maternity Pay or maternity allowance.
• The right was exercisable, after 8 weeks notice, between 20 and 52 weeks after the birth.
• ‘APL’ has since 2014 given way to a more complex regime of interchangeable maternal and parental leave entitlements (see below).

• These regulations were part of the 1999 ERA but did not come into force until the 2009 Consulting Association scandal had exposed the blacklisting of trade union activists, and those who had raised health and safety issues with a number of major construction firms.
• Regulation 3 prohibits any person from compiling, using, selling or supplying a ‘prohibited list’ which is defined as a a list which- (a) contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and (b) is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.”
• Under regulation 5, a person denied work for a reason relating to a contravention of regulation 3 can complain to an employment tribunal.
• There is a presumption (which the employer can rebut) that if a workers’ name is found on a Blacklist which a company has in their possession or has used then that worker should be awarded compensation in line with compensation outlined in the Regulations.
• Regulation 6 extends liability under regulation 5 to employment agencies, and regulation 11(10) permits ‘a worker’ (a term which includes the self-employed) to bring a claim for a detriment.
• Successful tribunal claims attract a minimum award of £5,000 and a maximum of £65,300, and claims under regulation 5 can include compensation for injury to feelings.
• Claims under these Blacklisting Regulations can also be brought as a breach of statutory duty in the civil courts.
• However, the Blacklisting Regulations were not retrospective meaning workers who were Blacklisted before 2010 had to bring claims against employers under TULRA sections 137 and 152.

• Amended to permit HMRC to ‘name and shame’ employers who breached the regulations.

• These Regulations oblige agencies to provide workers who have been working for 12 continuous weeks on one assignment for one of the agency’s clients, with the same pay and conditions as their ‘permanent’ colleagues. Pay, working time, access to workplace facilities, and holiday provision are the key areas covered. However, sick pay provision is excluded.
• Article 2 of the underlying EU Temporary Agency Work Directive stated that the aim was to secure equal treatment “by recognising temporary agencies as employers.” However, the UK Regulations fall short of this, ensuring that agency workers remain of indeterminate status, neither employed by the agency nor by the agency’s customer, and consequently outside the ambit of the unfair dismissal regime.
• Article 5(2) of the Directive permits the so called ‘Swedish derogation,’ “where temporary agency workers who have a permanent contract of employment with a temporary-work agency [and] continue to be paid in the time between assignments” can be paid less than their colleagues who are not employed by the agency but directly employed by the agency’s customer – the hirer. However, the minimum level of pay during ‘idle’ time under the 2011 UK Regulations is 50% of the standard rate, a sum which is not required to match National Minimum Wage standards. It is not, however, difficult to keep an agency employee paid the minimum wage constantly working, particularly when obliged in practice to accept whatever work is offered, however uncongenial.
• Anecdotal evidence, and common sense, suggests that agencies and hirers often try to get around these Regulations by transferring workers on to other contracts as the 12-week stage approaches to avoid the obligation to put the agency worker on an improved pay scale.

• Free movement of labour is one of the four fundamental economic freedoms on which the European Union is based. This revision of a regulation that was first issued in 1968 is, like all EU regulations, ‘binding in its entirety and directly applicable in all Member States,’ and is to be distinguished from regulations issued by the government as statutory instruments under the authority of Acts of Parliament (‘secondary legislation’) – the usual means by which the provisions of EU Directives are implemented.
• Like EU Directives, an EU Regulation is said to be ‘directly effective’ against public authorities, and when necessary its provisions can be relied upon by litigants in the UK courts.
• The Regulation essentially requires Member States to prohibit any discriminatory treatment of EU nationals in the sphere of employment and trade union membership except in relation to ‘conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.’
• The Regulation extends to requiring that workers from other EU states “shall enjoy all the rights and benefits accorded to national workers in matters of housing, including ownership of the housing,” and that the children of EU migrants be admitted to state education.

• Amended the Employment Rights Act 1996, increased the qualifying period for unfair dismissal from one year to two years for those employed after 5th April 2012.

• Employment judges were given the discretion to choose, in certain circumstances, whether to hear an unfair dismissal case, alone, or with a ‘full panel.’

• Witness statements are now to be taken ‘as read’, dispensing, at the discretion of the judge, with the need for witnesses to attend tribunal.
• Witnesses are no longer able to claim expenses for attending tribunal.
• The maximum costs awardable in a tribunal case, were doubled from £10,000 to £20,000.
• Deposit Orders, made, at the discretion of the Judge, in cases where it appears that one of the parties has little chance of success, were also doubled and can now be as much as £1,000 for each claim.

This ‘scatter gun’ Act made a number of significant changes to UK employment law including:

• Claims for breaches of health and safety requirements at work were restricted by shifting the burden of proof back on the worker.
• The last of the Wage Councils, the Agricultural Wages Board was abolished.
• Employment Tribunals were given the power to require deposit orders in relation to specific allegations.
• The qualifying period for unfair dismissal claims on grounds of political opinion was abolished.
• The maximum award for unfair dismissal was capped at one year’s gross pay for those earning less than £74,200 each year (in 2017 this cap is now £80,000).

Whistleblowing

• Whistle blowing protections were narrowed to encompass only matters of ‘public interest. (In Parkins v Sodexho [2001] IRLR 109 the EAT held that a dismissal made following an employee’s complaints about breaches of their employment contract fell within the ambit of the 1998 Act.)
• The Act deprived employees relying on the disclosure of information not considered to be matters of public interest in employment claims of ‘whistle blower’ status and gave tribunals the right to reduce awards by up to 25% where it was considered that there was an element of ‘bad faith’ behind the disclosure, and made it possible in certain circumstances for co-workers to be personally liable for whatever wrong had caused the complainant to make the disclosure in question.
• ERA 1996 whistle blowing was, however, extended beyond employees to embrace ‘workers’.

No fault’ dismissal

• Proposals for ‘no fault’ dismissals introduced the concept of ‘settlement agreements,’ effectively providing legislative recognition of the long standing practice of giving ‘redundancy’ payments to workers who have essentially been sacked, payments usually made with a view to reducing the likelihood of the dismissed worker bringing a claim for unfair dismissal.
• The concept of ‘without prejudice’ negotiations has been widened, building on the existing compromise agreement framework, permitting arrangements for a worker to waive the right to bring a claim in return for a payment.

Employee shareholder’

• The Act introduced the much trialed concept of the ‘employee shareholder’, allowing existing employees to sign away rights to redundancy payments, unfair dismissal, the right to request flexible working and certain maternity rights, in return for a share in the company.
• However, employees who become ‘employee shareholders’ would still have the right to bring claims if they believe they have been dismissed for an automatically unfair or discriminatory reason.

Harassment

• The Act removed the right to make ‘third –party harassment’ claims – employers have ceased to be vicariously liable in such circumstances for the actions of their customers and suppliers – and abandoned the discrimination questionnaires introduced in 2010.

Changes to Employment Tribunals

• The Act introduced Acas ‘Early Conciliation,’ which was to be implemented in 2014, and empowers tribunals to impose financial penalties upon employers who were unsuccessful at tribunal – a sum equivalent to up to half the compensation awarded the claimant, between £100 and £5,000. The money goes to the Exchequer the intention being to discourage employers from breaching those rights and reduce claims, rather than compensate.
• It also gave tribunals the discretion to require that respondents undertake ‘equal pay audits’ on losing an equal pay case – a measure implemented in 2014.
• The Act permits a single judge to hear certain EAT cases, and gave the government the power to permit Legal Officers to hear claims ‘subject to the affirmative resolution of Parliament’.

Arguably, the most significant attack on employee rights by the Coalition Government was the introduction of fees for those bringing claims to the Employment Tribunal. Fees were introduced by The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 under powers conferred by the Tribunals, Courts and Enforcement Act 2007.

• Tribunal fees have priced tens of thousands of people out of justice. To bring an unfair dismissal claim you now need to pay an issuing fee of £250 and a hearing fee of £950. Anti-discrimination, equal pay rights, and a range of other individual employment rights, have been effectively withdrawn from the millions of British people who cannot afford to pay £1,200 to bring a claim against their employer.
• Recent research by academics at Oxford University has shown that across the board the impact of Employment Tribunal Fees has led to a two thirds reductions in most claims. Sex discrimination cases have reduced by a staggering 80% from their pre-fees level.
• Withheld wage claims are now uneconomic for the lower paid. If you think your employer owes you £400, the gamble of paying a £130 issuing fee, and a £250 hearing fee for a claim which might fail, and, might well not even be paid if it is successful, is a risk many are not prepared to make.

• These Regulations relaxed and simplified the 2004 Regulations, and integrated the fees regime into the rules of procedure. To very much simplify the considerable 2013 revisions, the new regulations facilitate the sifting and striking out of weak claims on examination of the claim and response forms, and at preliminary hearings, and oblige tribunals to promote the use of alternative dispute resolution by the parties at all stages of a claim.

• The minimum period for consultation with workers where an employer proposes to make 100 or more employees redundant within a 90 day period was cut from 90 days to 45 days before the first of the dismissals.
• Workers coming to the end of fixed term contracts were excluded from the consultation regime.

The regulations are, as the title suggests a grudging implementation of the bare minimum demanded by the Parental Leave Directive, and the rights conferred are exercisable in addition to paternity and maternity leave entitlements.

• An employee is now permitted a total of up to 18 weeks unpaid leave for each child (it had previously been 13 weeks), and instead of being required to take that leave prior to the child’s 5th birthday it can now be taken at any time before the 18th birthday, provided 21 days’ notice is given.
• The employer cannot refuse to permit the employee to take the time off, but are able in certain circumstances to postpone the leave. Parents who insist on taking any of their leave and perceive that they have suffered a detriment at work as a result can make a claim against their employer at tribunal.

• The right to request ‘flexible working’ has been extended to all employees with six month’s service.
• However, the right amounts to little more than a requirement for an employer to follow a set procedure when ‘considering’ the request.
• If an employer fails to consider an employee request, the employer could face a tribunal claim and the prospect of having to pay a modest award to the disappointed employee, but this assumed that the employee is willing to gamble paying a more substantial employment tribunal fee on the result.

• The impact assessment in December 2013 made the rather feeble claim that the reforms under these Regulations “seeks to remove unnecessary gold-plating, allowing parties to concentrate on the key issues, and discouraging delay or avoidance of consultation.”
• The anticipated repeal of the 2006 ‘gold plating’ did not occur. In what might be seen as a victory for pragmatism over more ideologically led reform, the BIS consultation had indicated that employers did not want to see ‘service provision changes’ – perhaps better known as ‘contracting out’ – taken out of the reach of the TUPE employee protection, wary of a return to the uncertainty of the pre-2006 days, and the business disputes that had led to the domestic augmentation of basic rights.
• However, the 2014 TUPE regulations, in accord to a then recent ‘employer friendly’ CJEU ruling, provided that where the terms and conditions of transferred staff are governed by a collective agreement, changes made under that agreement subsequent to the transfer will not apply to the contracts of the transferred employees, and allow employers to seek to re- negotiate changes to terms and conditions one year after the transfer of the business.

• These rather complex regulations have introduced a new flexibility to maternity, paternity and adoptive leave, permitting working parents to split the available leave between them.
• ‘Additional paternity leave’ has been dispensed with, but ‘ordinary paternity leave’, of one or two weeks remains.
• Now, for example, after 5 months a mother may elect (having given 2 months’ notice) to ‘curtail’ her full paid leave (39 weeks out of the 52 available as statutory maternity leave or ‘SML’) by splitting the 4 months remaining to her to allow her husband to spend the next 2 months at home with her. She might choose to return to work, allowing her husband to spend four months at home with the baby. Portions of the available leave can be taken at almost any time during the first year after birth, although taking in excess of 3 periods of ‘discontinuous leave’ requires the employer’s permission.
• The same statutory rights which protect workers taking other forms of parental/caring leave from disadvantage, unfair dismissal, and discrimination, are the same requirements for the employer to hold the job open, which apply in relation to SPL.
• The major drawback to SPL is that, as with SML, unless the employer chooses to enhance the statutory £139.53 weekly pay, then financial considerations usually make it very difficult for parents to take any leave beyond the first six weeks during which the mother/ main adopter receives 90% of her normal take home pay (earnings related SML cannot be shared).
• The system does not extend to permitting grandparents or other relatives to share leave – it is restricted to two partners during the year following the birth or adoption. It is not, for example, available to a single parent to share with the child’s grandmother.
• Only one partner ‘takes’ the SPL, which can then be split between the partners. Up to 50 of the 52 weeks of SML can be shared, although only 37 weeks of paid leave can be shared (and 4 of these weeks will be in the initial 6 weeks of earnings related to the SML period, which will not be likely to be sacrificed for 4 shared weeks on £153.38). Where both are employed, have been employed for 6 months, and have satisfied the earnings requirements, both are entitled to SPL and to Statutory Shared Parental Pay – the weeks of unpaid leave can be divided up between them. However, if one of the partners is not employed, and therefore not entitled to SPL, the couple may still be able to take advantage of SPL and Statutory Shared Parental Pay.

• This established an Agricultural Advisory Panel to replace the Agricultural Wages Board for England and Wales (the last of the Wages Councils in England) which had been abolished in 2013

• These regulations doubled the financial penalty for underpayment of the National Minimum Wage and increased the NMW for those over 25 to £7.20 an hour calling this ‘the national living wage rate.’ However, this new increased rate is not the same as the real Living Wage which is calculated each year by the Living Wage Commission
• By regulation 4A the NMW for 21-25 year olds is £6.70; for 18-21 year olds £5.30; for those under 18 £3.87 and £3.30 for apprentices.

The principal aims of the Act appear to be to make it extremely difficult or impossible for workers to engage in lawful industrial action, and to starve the trade unions and the labour movement of funds.

The major changes made under the Trade Union Act 2016 are:

• In all industrial action ballots, at least 50% of those entitled to vote must do so and a simple majority must be in favour of action. Therefore, if 100 members are balloted, at least 50 must vote. If 50 vote, at least 26 must vote yes for there to be a valid mandate. If all 100 vote, 51 would need to vote in favour.
• If the majority of those entitled to vote are ‘normally engaged’ in the provision of ‘important public services’ (specified as health, education, transport, border security and fire-fighting services) at least 40% of those entitled to vote must vote in favour of action (in addition to the 50% turnout threshold). Therefore, if 100 members are balloted, a minimum of 50 must vote and at least 40 must vote yes for there to be a valid mandate. A simple majority is still required in all ballots, so if all 100 members had voted, then 51 votes in favour would be required to enable action.
• This 40% threshold is arguably discriminatory: 73% of those likely to be in these ‘important public services’ will be women and the Act’s definition of what counts as an essential service is out of keeping with international legal norms. The International Labour Organization defines “essential services” as services where “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”. It is hard to see how the Central Line not running or a child missing one day of schooling would “endanger life, personal safety or health of the whole or part of the population”.
• Unions now must give 14 days’ notice of any industrial action (unless the employer agrees that 7 days’ notice is enough). The previous requirement was to give 7 days’ notice.
• Unions now have to include additional information on ballot papers, including a clearer description of the trade dispute and the planned industrial action, so that workers know exactly what they are voting for.
• Previously, industrial action must have taken place within four to eight weeks of the ballot and action could be taken indefinitely, provided the industrial dispute remains live. This was repealed under the 2016 Act which provides that a ballot mandate expires after six months, or up to nine months if both sides agree.
• For employers in the public sector (and some private sector employers that provide public services), ‘check-off’ (the deduction of trade union membership subs via payroll) will only be permitted if the worker can pay their subscriptions by other means and the union contributes to the cost of administering the system.
• Some of the current Code of Practice on picketing has been given statutory force e.g. the requirement to appoint a picket supervisor.
• A new process for trade union subscriptions is being introduced that allows new members to make an active choice about whether to pay into political funds. Information on opting out from such contributions will need to be provided on an annual basis. These provisions represent another bid to starve the labour movement of funds. After a transitional period, unions will only be permitted to invite new members to contribute to a union’s political fund, and existing members will have to be reminded every year that they can opt out if they wish. Unions which establish political funds after the transitional period will similarly be restricted to inviting members to opt in to the fund.
• Employers in the public sector (and some private sector employers that provide public services) will have to publish information on ‘facility time’ such as the amount of paid time off for union duties and activities. The Act also allows the government to issue regulations restricting facility time at particular employers.
• The government must commission an independent review of possible methods of electronic balloting, although the Act does not include any commitment to its introduction.
• There are new powers under the 2016 Act for the Certification Officer to investigate and take enforcement action against trade unions for breaches of their statutory duties. Theresa May’s Conservative government initiated a consultation exercise in April 2017 with proposals for the Certification Officer, who will be able to issue fines of up to £20,000 for breaking the law including serious breaches of election rules or mismanagement of their political funds.

• Regulations 2016/1051 brought section 1 of the TU Act 2016 into force on 3 November 2016., essentially a technical measure, and section 4 which required that a review of electronic balloting be undertaken

• Regulations 2016/1170 brought, on 5 December 2016, section 3 into force in so far as inserting a new subsection 2D s 226 of TULR(C)A 1992 to permit regulations relating to the balloting thresholds to be made. It also brought s11 partially into force, enabling the secretary of state to make regulations relating the ‘opting in’ of union members to contribute to political funds.

This response to Westminster’s Trade Union Act 2016 saw the Welsh Assembly exercise devolved powers to exclude Welsh public authorities from regulations issued under the 2016 Act relating to:

• The balloting thresholds;
• Placing conditions on the ‘check off’ to pay union subs out of wages;
• Limiting facility time;
• Requiring publication of the extent to which facility time is granted.

The 2017 Act also expressly prohibited Welsh public authorities from using agency workers as scab labour during official industrial action.

• S11 of the 2016 Act made amendments to the provisions relating to political funds in TULR(C)A 1992, so that union members were required to ‘opt in’ rather than out of political funding. These regulations introduced a transition period of 12 months starting 1 March 2017, so that the new arrangements applied to members who join after February 2018 or members of a union with a political fund established after that date.

Regulations 2017/139

As of 1 March 2017, this brought s2 (the 50% quorum necessary for lawful industrial action) into force and brought s3 (the 40% threshold of support for industrial action in important public services) fully into force. It also brought into force s5 (on information to be provided on the voting paper); s6 (on the matters those entitled to vote must be told of the result of the ballot); s7 (details on industrial action taken to be provided the Certification Officer); s8 ( the requirement for two weeks’ notice of industrial action be provided the employer); s9 (the six month mandate for industrial action), s10 (restrictions on lawful picketing); the remainder of s11 on the imposition of ‘opt in’; s 12 (the requirement for unions to provide an annual statement on political funding); s13 (on the requirement for public sector employers to publish the extent of facility time); part of s15 (restrictions on the use of the ‘check off’ for union subs in the public sector); and s18 (the enforcement powers of the Certification Officer relating to political funding).

• These regulations, issued under the terms of s13 of the TU Act 2016, govern the provision and publication of information on the extent and cost of facility time for union officials in the public sector. It came into force on 1 April 2017.

This Order, as of 1 October 2017, limited the choice of independent scrutineer to the following companies:

• Electoral Reform Services Limited
• Involvement and Participation Association
• Popularis Limited
• Print Image Network Limited (trading as UK Engage)
• Democracy Technology Limited (trading as Mi-Voice)
• Kanto Elect Limited

• The trade union challenge to the Employment Tribunal fees regime was ultimately successful on appeal to the Supreme Court. The fees were held to be unlawful, their imposition a breach of the ‘constitutional right of access to the courts…inherent in the rule of law,’ as well as indirectly discriminatory under the terms of the Equality Act 2010.

• This instrument was the first of a handful of initiatives by the May Government made in a bid to be seen to be attempting to address some of myriad problems faced by those working under the terms of ‘zero hour’ contracts and other similar insecure, unpredictable and exploitative forms of ‘flexible employment.’ It amended section 8 of the Employment Rights Act to require a pay slip to provide information regarding the number of hours worked where ‘the employee’s pay varies as a consequence of the time worked.’ It came into force on 6 April 2019.

• Drawing on powers conferred by the Employment Rights Act 1999, this Order extended the rights to a written statement of the particulars of employment and to an itemised pay statement to workers ‘Limb B’ workers. It came into force on 6 April 2019.

• As of May 2018, these Regulations extended ‘whistleblowing’ protection under the terms of the Employment Rights Act 1996 to give protection to those who apply to an NHS employer for a contract of employment, a contract to do work personally or for any other appointment to an office or post.

• These regulations made the written statement of employment particulars a ‘day one’ entitlement. It also required employers to specify any probationary period, ‘normal working hours, the days of the week the worker is expected to work and whether or not such hours or days may be variable, and if they may be, how they vary or how that variation is to be determined,’ along with leave, sick pay and training entitlements. With regard to the provision of leave, it extended the holiday pay reference period from 12 weeks to 52 weeks. The changes to leave reflected changes to the Working Time Regulations 1998 following the implementation of Council Directive 2003/88/EC . The regulations came into force in April 2020.

• The Act provides entitlement to 2 weeks of leave for an employee when a child aged under 18 dies. The Act inserted Chapter 4 (Parental Bereavement Leave) in Part 8 of the Employment Rights Act 1996 (ss 80EA-80EE) and came into force in January 2020 when the Parental Bereavement Leave Regulations were made.

• The Supreme Court ruled that a sub-contracting plumber who claimed for holiday pay did have the required ‘Limb B’ worker status. The court did not however issue the anticipated new set of judicial guidelines for determining employee/worker/in business on own account distinctions and suggested that the Government should legislate to that end.

• This was a largely technical order which came into force on ‘Exit Day’ (31 January 2020). However, Schedule 2 ‘Amendments to the Transnational Information and Consultation of Employees Regulations (‘TICE’) 1999’ has had a significant adverse impact on labour rights. Now no new European Works Councils can be established under the statutory procedures. Moreover, it also seems that by appointing a representative agent in an EU state and establishing a new EWC there, employers can dispense with any existing arrangements governed by the TICE regulations.

• These Regulations amended the Conduct of Employment Agencies and Employment Businesses Regulations 2003 to require that agency workers receive a document on signing up which sets out the nature of their relationship with the agency or employment business in question.

These Regulations:

• increased the maximum penalty for aggravated breach of employment rights under s12A of the Employment Tribunals Act 1996 from £5,000 to £20,000;
• extended the right to a written statement of particulars of employment in Part 1 of the Employment Rights Act 1996 to ‘Limb B’ workers.
• decreased the percentage of employees required by the Information and Consultation of Employees Regulations 2004 for a valid request for the employer to negotiate an agreement on informing and consulting its employees from 10% to 2%.

S40 of the National Minimum Wage Act provides that the minimum wage applies to seafarers employed on board ships registered in the UK other than when the employment is wholly outside the United Kingdom or the individual in question is not ordinarily resident in the UK. Subsequently the National Minimum Wage (Offshore Employment) Order 1999 extended entitlement to all those who work or who ordinarily work in the territorial waters of the United Kingdom or in the United Kingdom sector of the continental shelf, Article 2(2) of the 1999 Order providing that the Order did not apply to dredging or fishing or ‘to employment in connection with a ship which is in the course of navigation.’ In 2020 the amended Article 2 clarified this latter exclusion, referring instead to ships ‘exercising the right of innocent passage or the right of transit passage,’ the UN Convention on the Law of the Sea definition of which includes ferry services between the UK and Europe, making it clear that the NMW did not apply to foreign flagged ferries operating out of the UK.

• The Act, statutory instruments and Treasury directions made under powers conferred by the Act established maintained and amended the Coronavirus Job Retention Scheme (‘CJRS’) for those paid on a PAYE basis and during March 2020 – September 2021. This ‘furlough scheme’ amounted to a massive Government intervention into the UK labour market to preserve the jobs of those unable to work during the pandemic. Some 11.7 million jobs were furloughed, costing the Exchequer approximately £70 billion. It operated alongside a Self-Employment Income Support Scheme (which saw 2.9 million people claim £28.11 billion) and a Jobs Support Scheme by which augmented the wages of those who had been required to continue to work on ‘short time,’ the furlough scheme being amended in July 2020 to permit employees to return to work on a short time/ semi furloughed basis. The decision to furlough qualifying workers was one for the employer and those who chose to participate (some 1.3 million employers) were provided with grants to pay each furloughed worker 80% of their wages (at certain points the Government contribution was 60% and 70%) up to a cap of £2,500, employers being free to elect to top the sums provided by HMRC. Despite these measures approximately half a million workers are estimated to have been dismissed as redundant as a direct result of the pandemic during the life of the scheme.

• A huge number of Statutory Instruments, both technical and substantive, were made under powers provided by the Act. Of particular significance in employment law terms were regulations relating to Statutory Sick Pay and those which required workers to inform their employer if they had test positive for Covid or were self-isolating and prohibited employers from permitting workers who had tested positive/were self-isolating to work unless they could work from home.

• The absence of contractual sick pay for many of those obliged to work during the pandemic was problematic. About 20% of the UK work force don’t qualify for SSP which then paid £96 per week; this meant that very many workers required to work could not afford to stay at home if they became infected. The situation was made worse by the fact that self -employed, most ‘Limb B’ workers and those earning less than £120 each week were not eligible for SSP and nor (until March 2020) were symptomless self-isolators, SSP being available only to the sick or incapacitated. The exclusion of most ‘Limb B’ workers from the CJRS and the Statutory Sick Pay regime was the subject of judicial review in R (on the application of Adiatu and the Independent Workers Union of Great Britain v HM Treasury [2020] IRLR 658, the High Court finding the exclusions justified and proportionate. However, Universal Credit and Employment and Support Allowances were made more readily accessible during the pandemic, and as of March 2020 the three day ‘waiting period’ for SSP was lifted for all employees who tested positive for Covid. The Government also offered refunds for SSP costs (limited to 2 weeks for each employee) for employers with fewer than 250 employees; ‘fit notes’ were available from the ‘NHS-111’ telephone service as well as from GPs, and (albeit in December 2021), the ‘self-certification’ period was extended from 7 days to 28 days. In Wales the Covid-19 Statutory Sick Pay Enhancement Scheme saw self-isolating social care workers paid their full salary and similar arrangements were provided in Scotland with additional ‘death in service’ cover of £60,000 for those without it.

• The EU/UK Trade and Co-operation Agreement governs the post Brexit relationship of the UK with the EU. The treaty requires the UK to retain the level of employment protection that pertained when the UK was a member of the EU, and it requires it to ‘implement’ all the International Labour Organisation (a UN body) Conventions and Articles of the European Social Charter (a Council of Europe instrument) that it has ratified. Under the terms of the various mediation procedures in the agreement the TCA also requires the Government to take account of the advice of the ILO and Charter supervisory bodies.  The UK has ratified numerous ILO Conventions and almost all the employment related Articles of the 1961 Charter, although because of the restrictions on trade union freedom and related labour rights imposed since 1979, the UK has for many years been held by these supervisory bodies to be in breach of many of these international obligations.
• S 29 of the European Union (Future Relationship) Act 2020 however, permits and requires judges to ‘amend, repeal or revoke’ legislation in force on ‘Brexit day’ ‘so far as such implementation is necessary for the purposes of complying with the international obligations of the United Kingdom under the agreement’ (the TCA). This ostensibly places very considerable power in the hands of the judiciary, power potentially to amend legislation which had effect on or prior to 31 January and which was in breach of international labour treaty obligations to make it compliant.

• This order extended the ‘protection’ conferred by s44 TULR(C)A 1992 not be subjected to a detriment by an employer for leaving or refusing to return to a workplace or for taking steps to protect themselves in circumstances of danger reasonably believed to be serious and imminent from employees to ‘Limb B’ workers. This followed the ruling in R (on the application of the Independent Workers Union of Great Britain v Secretary of State for Work and Pensions [2021] IRLR 102 where the exclusion of ‘Limb B workers was held to be an insufficient implementation of the relevant EU law Directives.

These regulations brought sections 17 (investigatory powers of Certification Officer) and 19 (the enforcement powers relating to the 11 offences set out in The Trade Union (Power of the Certification Officer to Impose Financial Penalties) Regulations 2022 – see below) partially into force, and section 20  (power to impose a levy, see The Trade Union (Levy Payable to the Certification Officer) Regulations 2022 below) into force on 8 December 2021.

• This case saw the Supreme Court uphold the ruling of the Court of Appeal to the effect that unless the collective procedures can be said to have been exhausted, an offer made by the employer directly to the employees ‘bypassing’ collective bargaining arrangements when the ‘sole or main purpose’ of that offer is obtain the result that ‘the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union’, will fall foul of 145B TULR(C)A 1992. Breaches of 145B attract potentially punitive awards of (currently) £5,128 for each complainant; the claim in Kostal had been brought by 57 workers. Much weight was placed on the need for the interpretation of the provision in question with Article 11 of the European Convention of Human Rights.

The Supreme Court confirmed that Uber drivers are ‘Limb B workers’ rather than self employed and thus entitled to the EU derived employment rights which go with that status. A key point was the necessity to look at the reality of the relationship rather than the terms of the contract, as in Autoclenz v Belcher, [2010] UKSC 41.

• The ruling of the Supreme Court was that ‘sleep in’ staff who could sleep as long as they were available to deal with any patient/client’s needs (and presumably in any other ‘sleep in’ situation where a worker is present at the workplace and ready to undertake duties when required) need not be paid the minimum wage. Since British Nursing v HMRC [2002] EWCA Civ 494 when it was ruled for tax purposes that a ‘sleep in’ worker was deemed to be working it had been believed that the NMW regulations must apply in such circumstances.

• The CAC had held Deliveroo riders to be in business on their own account largely due to a ‘right of substitution’ clause in their contracts and thus were not able to rely of the statutory recognition procedures. The Court of Appeal subsequently rejected the union’s arguments that compliance with Article 11 ECHR required that the riders be permitted to bargain collectively, essentially on the grounds that as independent contractors the Deliveroo riders could not rely upon Article 11. The decision appears to be at variance with the Supreme Court’s rulings in Uber v Aslam [2021] and with Pimlico Plumbers v Smith [2018].

• These regulations brought the remainder of sections 17 (new investigatory powers for the Certification Officer) and 19 (new enforcement powers for the CO) into force, s 21 (extension of the right of appeal against determinations of the CO beyond points of law to ‘all questions’, intended to further empower complainants) into force and the remainder of s22 (minor and consequential amendments) into force on 1 April 2022.

• These were issued under the powers conferred by s20(1) of the TU Act 2016 now to be found in s257A of TULR(C)A 1992 inserted when s20 of the TU Act 2016 came into force in December 2021. Essentially unions are now required to foot much of the bill for the work of the Certification Officer. The CO’s annual budget for has increased very considerably due to the extra responsibilities imposed by the 2016 Act and as of 2022-23, an annual levy has been charged (the levy was required to cover costs of £656,672 in 2022-23). There are three tiers to the levy regime. The first is a ‘basic levy’ payable by unions, federations of unions and employers’ organisations. If the levy will amount to more than 2.5% of annual income the organisation in question is exempted. Then there is a union only ‘additional levy’ requiring unions liable for the basic levy to cover half of the costs of dealing with balloting and complaints (although if the combined total of the basic and additional levy exceeds 2.5% of annual income, then the union is excused the additional levy). A similar 2.5% qualification applies to a third ‘enhanced levy’ by which the larger unions, union federations and employers’ organisations make up for what would otherwise have been paid by exempted organisations.

The new investigatory powers of the Certification Officer conferred by s17 of the Trade Union Act 2016 were an unashamed bid to encourage complaints and mire unions in expensive and time-consuming investigations. The CO has been given powers to investigate where there has been no complaint and is required even to accept complaints from third party ‘officious bystanders.’ However, in 2022-23 of 27 complaints brought (all by members), one was withdrawn, 15 struck out, 8 dismissed and just 3 were upheld.

Complementing the new powers of investigation, fresh ‘offences’ were issued under the powers conferred by s19(1) and (2) of the TU Act 2016, now to be found in s256 D and Schedule A4 of TULR(C)A 1992. There are 11 such offences, attracting civil rather than criminal penalties. Of the 11 offences, 5 relate to the management of political funds. The minimum penalty is £200 and if it is determined that an individual was culpable the maximum that individual can be fined is £1,000.

Level 1 offences attract penalties of up to £10,000 for unions with less than 100,000 members and up to £20,000 for unions with more than 100,000 members following enforcement orders made:

• ‘On failure by union to comply with duty to secure positions not held by certain offenders’ (s45C(5A) of the 1992 Act)
• ‘On failure by union to comply with requirements about elections for certain positions’ (s55(5A) of the 1992 Act)
• ‘On failure by union to comply with restriction on applying union’s funds in the furtherance of political objects’ (s 72A (5) of the 1992 Act).
• ‘On failure by union to comply with rules as to ballots on political resolutions’ (s80(5A) of the 1992 Act)
• ‘On failure by union to comply with rules as to political fund’ (s82(2A) of the 1992 Act)
• ‘On failure by union to provide required information to members about contributing to political fund’ (s84A (5) of the 1992 Act)

Level 2 offences attract penalties of up to £5,000 for unions with less than 100,000 members and up to £10,000 for unions with more than 100,000 members following enforcement orders made:

• ‘On failure by union to comply with duties regarding the register of members’ (s 24B (6) or 25(5A) of the 1992 Act).

Level 3 offences attract penalties of up to £2,500 for unions with less than 100,000 members and up to £5,000 for unions with more than 100,000 members following enforcement orders made:

• ‘On failure by union to comply with member’s request for access to accounting records’ (s31(2B) of the 1992 Act)
• ‘On failure by union to provide details of industrial action etc., or political expenditure, in annual return’ (section 32ZC (6) of the 1992 Act).
• ‘On breach or threatened breach by union of rules on certain matters’ (s108B (3) of the 1992 Act)
• ‘On failure by union or other person to comply with investigatory requirements’ (paragraph 5(1) of Schedule A3 to the 1992 Act).

• When the Employment Act 1982 (see above) further compromised the statutory immunities, caps on union liability in tort were introduced (by s.16 of that Act). Currently set out in s 22 of TULR(C)A 1992 they were radically increased by this Order.

• Awards against unions with less than 5,000 members found to have taken industrial action not protected by the statutory immunities can now be required to pay up to £40,000 in damages (formerly the cap was £10,000). For unions with between 5,000 and 24,999 members the new cap is £200,000 (formerly £50,00); for those with between 25,000 and 99,999 members the new sum is £500,000 (formerly £125,000) and for more than 500.000 members the cap is £1 million (formerly £250,000).

• At the same time that the caps on tortious liability were increased, the Secretary of State for Business, Energy and Industrial Strategy also lifted the prohibition on the use of agency workers as scab labour (Reg. 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003), issued under powers conferred by the Conduct of Employment Agencies and Employment Businesses Act 1973.

• This initiative had been the subject of a consultation in 2015 ‘Using agency staff during strike action,’ and draft regulations were produced in anticipation of implementation. However, it did not feature in the TU Act 2016, principally it seems because employment agencies do not want to provide employers with scab labour.

• These regulations brought s 14 of the 2016 Act into force on 25 November, inserting 172B relating to the ‘reserve power’ with regard to facility time into TULR(C)A 1992. If in the light of the published information on facility time provided by public service employers and ‘any other matters that the Minister thinks relevant,’ the Minister has the power to make regulations ‘containing any provision that the Minister considers appropriate for the purpose of ensuring that, in each period specified by the regulations, the percentage of an employer’s total pay bill spent on paying relevant union officials for facility time does not exceed’ a specified percentage.

• S 238. TULR(C)A 1992 provides a measure of protection against dismissal for engaging in official lawful industrial action, but this does not extend to lesser detriments. Consequently, the question for the Court of Appeal in this case was whether the protections afforded members of a trade union by s146 of TULR(C)A 1992 (‘Detriment on grounds related to union membership or activities’) can embrace participation in a lawful strike by reliance on the Human Rights Act 1998 and Articles 10 and 11 of the European Convention of Human rights. While the Court of Appeal allowed the appeal (brought by the Secretary of State for Business Energy and Industrial Strategy) against the ruling of the EAT that s146 be ‘read down’ to include such protection against sanctions short of dismissal, the case will shortly be heard by the Supreme Court.

• The Explanatory Note to this Act states that: ‘The Act requires harbour authorities to ask the operator of a service which enters a UK harbour 120 times [the figure had initially been 52] or more in a year for a declaration. The declaration is that seafarers on the service who do not qualify for the UK national minimum wage (NMW) are being paid at least an equivalent rate to the UK NMW while working in the UK or its territorial waters. Harbour authorities must impose surcharges when operators fail to provide a declaration or where they operate a service inconsistently with a declaration. Subject to certain exceptions, the Act requires harbour authorities to refuse ships providing a service access to their harbour if they impose a surcharge and it is not paid.’

• The Secretary of State for Transport when introducing the Bill for its second reading in the House of Lords stated that ‘The legislation will ensure that seafarers with close ties to the UK who are working on frequent services to UK ports have to be paid at least an equivalent to the UK national minimum wage while they are in our waters.’ He claimed that ‘the point of the Bill’ was ‘to discourage the sort of behaviour we saw from P&O earlier this year.’ The infamous mass sacking of ferry crews employed by P&O in March 2022 however, were of British workers in relatively well paid jobs for whom the NMW was largely an irrelevance. It is their replacements, foreign nationals, who are paid very much less than the minimum wage. Moreover, it is doubtful whether this peculiar Act will do anything to increase the pay of these workers; it will certainly do nothing to improve their other terms of employment which are similarly vastly inferior to those enjoyed by the seafarers they replaced. The substantive elements of this Act will come into force when the Secretary of State makes the required regulations.

• The Act, likely to come into force in 2024 when it is anticipated regulations will be issued, will require employers to pass on all qualifying tips to their workforces (including agency workers); the only permissible deductions will be those made for PAYE purposes. Tips will be required to be passed on before the end of the month that follows the month in which they were given. Relevant employers will be required to have a written policy on the collection and the fair distribution of tips and to keep records for 3 years. The records can be the subject of information requests by qualifying workers.

• Enforcement will by complaint to an employment tribunal. There is a comparatively generous time limit of 12 months from the time of the breach where the claim is one of a failure of the employer to pay. If successful a declaration will be made by the tribunal; it may however elect to make an order to require compliance and additionally has the discretion to require payments be made to claimants not party to the claim – the complainant’s colleagues. As for breaches of the requirements for a written policy and the maintenance of and access to records, in the event of a successful claim the tribunal must similarly make a declaration and may order compliance. The usual 3 month time limit applies to claims relating to policy and records. The tribunal will have the power to require the employer to pay an award of up to £5,000 to the complainant to compensate for any pecuniary loss.

• Since 20 July this Act has empowered the Secretary of State for Business and Trade to make regulations to require minimum service levels during strikes by workers in the health services; fire and rescue services; education services; transport services; border security and those engaged in the decommissioning of nuclear installations and management of radioactive waste and spent fuel (see the new 234B inserted by the Act into TULR(C)A 1992).

• The Act inserts a new 234C into TULR(C)A 1992 allowing for ‘work notices relating to minimum service levels’ which employers may be required by these putative regulations setting out the minimum service requirement after the union having given notice of a strike under the terms of 234A of TULR(C)A 1992. The work notice will identify the persons required to work during the strike and specify the work required to be carried out by them.

• A work notice must be given following consultation with the union at least 7 days before the earliest strike date (or any other time agreed between the employer and the union).

• The statutory immunities will not apply in relation to an act done by the union to induce a person to take part, or to continue to take part, in the strike if there is a valid work notice and the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice. Moreover, ‘any loss that would have been suffered even if the union had taken the reasonable steps mentioned in that paragraph is to be disregarded in calculating any amount to be awarded against the union by way of damages,’ and for the purposes of the Act and any regulations overtime bans and call-out bans are to be regarded as strikes. The Scottish and Welsh governments objected to the Bill and remain opposed to the Act which appears to allow for regulations to be issued by the Minister which impinge upon devolved powers (see s.3).

Currently those at risk of selection for redundancy who are on maternity, adoption or shared parental leave are given priority for any available alternative employment, and on dismissal without being afforded this priority the dismissed employee has standing to bring claim for automatic unfair dismissal. Under the terms of this Act the Employment Rights Act has been amended so that should the Secretary State elect to make the regulations under the powers conferred by this Act this priority will be enjoyed for an as yet to be specified period after a return from such leave. If there is a dismissal following a failure to be offered first refusal of alternative employment the employee will likely be given standing to make a claim for automatic unfair dismissal.

• This Act amends the Employment Rights Act 1996 so that when the Secretary State makes the necessary regulations, an employee will be entitled to leave and ‘statutory neonatal care pay’ providing the neonatal medical or palliative care (of a kind to be specified in the regulations) continues without interruption for at least a week before the child is 29 days old.

• This amends the Employment Rights Act 1996 to require employers to grant unpaid carers one week of extra unpaid leave every 12 months. This ‘day one’ right will come into force if the Secretary of State issues the requisite regulations, anticipated to occur in April 2024.

• This amends the Employment Rights Act 1996 to permit an employee to request flexible working arrangements up to twice a year, the employer required to consult with the worker before issuing any refusal. It will come into force if the Secretary of State issues the requisite regulations.

• The lifting of the prohibition on the use of agency workers as scab labour was challenged successfully in a claim for judicial review brought by 13 unions. The High Court held that Minister had not complied with the consultation duty set out in the Conduct of Employment Agencies and Employment Businesses Act 1973; the 2015 consultation ‘Using agency staff during strike action’ could not be relied on in 2023 and had in any case been inadequate.

• This Court of Appeal judgement related to three cases brought against Government departments in relation to ‘check off’ arrangements. The ruling confirms that withdrawing this means of deducting and paying union subscriptions direct from salary amounts to a breach of the individual contracts of employment of the workers concerned. However, the court also held that the Public and Commercial Services Union did not have standing as a third party to enforce the contracts of its members. This case is the latest development in the PCS Union’s campaign of litigation against the withdrawal of the check off, initiated in 2014 when the Tory/Liberal Democrat Government first instructed departments to dispense with such arrangements.