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Introduction
[pages 15-22]The 2015 edition of Law at Work, in its 27th year of publication, is being released against the backdrop of the election of a majority Conservative government, whose past policies have been damaging to trade unions. On the basis of statements made before and during the election campaign, this result threatens employment rights and access to justice at both a collective and an individual level.
The former coalition government’s term of office was characterised by attacks on a wide range of employment rights (see pages 18 to 23). It also targeted effective workplace organising by unions, in particular undermining facility time and check-off (see Chapter 5). However, significant elements of Conservative employment policy were checked by their Liberal Democrat coalition partners. In particular, Liberal Democrats blocked Conservative plans to repeal the Human Rights Act 1998 and to further tighten industrial action law. They also ensured that the “no-fault” dismissals proposed by Conservative donor Adrian Beecroft in his notorious 2012 report into employment laws were shelved.
A Conservative government with a majority, however small, produces several threats to workers’ rights and freedoms. Most obviously, many basic rights on which workers rely, for example, rights to working time, rest breaks, holidays, information and consultation rights, rights to work in safety, agency workers’ rights and protection on a business transfer or reorganisation, are based on European Directives (see Chapter 1). Conservative plans for an in-out referendum on Britain’s European Union membership by 2017 put all these protections at risk.
In addition, the Conservatives have pledged to repeal the Human Rights Act 1998 and to replace it with a “British Bill of Rights”, to be piloted through parliament by newly appointed Justice Minister Michael Gove.
Withdrawal from the Human Rights Act 1998
The Human Rights Act incorporated the European Convention on Human Rights (the Convention) into UK law (see page 25). Scrapping the Act will not mean that human rights can no longer be taken into account under UK law, but it will mean that unions have to take cases against the UK government to the European Court of Human Rights (ECHR) in Strasbourg.
Under Conservative proposals, rulings of the ECHR would not bind UK courts and would have an “advisory” status only. If the Council of Europe fails to agree to its proposals, the government says it will withdraw from the Convention. However, it is not possible for the UK to withdraw from the Convention and remain in the European Union (EU), without provoking a constitutional crisis due to commitments made under the Lisbon Treaty.
The Scottish government has confirmed that it will oppose repeal of the HRA 98. The move could also breach the terms of the Northern Ireland Good Friday Agreement.
A draft Data Communications Bill, branded a “snoopers’ charter” and blocked by Liberal Democrats, is also now back on the table as a result of the Conservative win.
Of particular concern to trade unionists are Conservative proposals to further limit industrial action law, summarised on pages 268-269. The plans include new, far tighter restrictions on balloting thresholds and strike notification, as well as lifting the ban on using agency workers to break official strikes. These restrictions, if implemented, says the TUC, will make legal strikes “close to impossible” in this country.
It is worth reflecting too on what has vanished from the agenda. Gone are commitments to address fairness in pay, to combat zero hours contracts, to reform the tribunal fee regime, to abolish the Swedish derogation, to expand the remit of the Gangmasters’ Licensing Authority, to use public procurement to promote stable direct employment, to reverse dangerous cuts to health and safety protection, to act against blacklisting with a proper public inquiry and to introduce electronic strike balloting.
There has never been a more important time to be an active trade union member and to act together. In contrast to the bleak parliamentary outlook, this year’s Law at Work highlights several recent key union litigation successes, showing how strategic court action, combined with well organised campaigning, can produce effective outcomes. Examples include important new rulings on holiday pay, on-call time, sickness absence rules, bonuses, sick pay and trade union rights. In particular, public services union UNISON continues its legal and political challenge to tribunal fees, with a planned appeal to the Court of Appeal expected in June 2015.
We hope that this updated edition of Law at Work will provide the basic information reps need to be able to understand the law, to make their case as clearly as possible to their employer and to win further victories for their members through negotiation and persuasion.
About Law at Work 2015
Law at Work 2015 has been thoroughly revised and updated. Unlike most other publications on employment law, LRD’s Law at Work examines the law from the perspective of trade unions and workers. While not designed to enable an individual or union rep to take a claim right through the court process, it indicates where the relevant law can be found, highlights what has changed and what has stayed the same and provides up-to-date examples and illustrations of the law in action.
The LRD’s Case Law at Work series of booklets provides summaries of relevant cases in much greater detail and can be read as a companion to this booklet.
Most trade unions offer their members a legal advice service and any member or rep contemplating taking a legal case should contact their union first. In some unions, tribunal cases will be handled internally at district, regional or even head office level. This booklet does not contain individual legal advice and must not be relied on as such.
Differences in law across the UK
Law at Work 2015 refers to the legislation as it applies to England, Wales and Scotland (although there are some minor variations in Scotland). However, the principles also apply in Northern Ireland, which has its own legislation but with a similar structure.
In England and Wales, decisions from the employment tribunal go to the Employment Appeal Tribunal (EAT) and from there to the Court of Appeal and then the Supreme Court (formerly the House of Lords). In Scotland, appeals from the employment tribunal go to the EAT in Scotland, and from there to the Court of Session and then the Supreme Court.
A significant difference between the Northern Ireland legal system and those in England and Wales and Scotland is that tribunals in Northern Ireland are still called industrial tribunals and there is no Employment Appeal Tribunal (EAT). Appeals from industrial tribunals go straight to the Northern Irish Court of Appeal (and from there to the Supreme Court). Decisions from the two EATs are binding on each other and on employment tribunals in England, Wales and Scotland, and are strongly persuasive in industrial tribunals in Northern Ireland. Judgments of the Court of Session and the two Courts of Appeal are not binding on each other, but bind all courts and tribunals below them.
Reading a case reference
Gibson v East Riding of Yorkshire Council [2000] IRLR 598, tells you that the claimant was called Gibson; the case was brought against East Riding of Yorkshire Council; and the judgment was reported in the law reports for 2000. The letters IRLR stand for Industrial Relations Law Reports, and the case was reported on page 598. Other law reports include the Industrial Cases Reports (ICR). If the case has not been reported in the law reports, or if it is also available free of charge online, the case number is generally quoted. For example, a case reference beginning “EAT” or “UKEAT” is from the Employment Appeal Tribunal; Court of Appeal decisions will include “EWCA”.
Case law
The law changes constantly as a result of decisions made by judges. This is known as case law and examples with their case references can be found throughout this booklet. There have been a large number of important cases this year and details can be found in each Chapter.
Main changes to employment laws: May 2010 — April 2015
There were a significant number of changes to employment laws under the last government. Here is a summary of the main new laws or changes to existing laws dating from May 2010 to May 2015.
1 October 2011
Qualifying agency workers secure new rights under the Agency Workers Regulations 2010 (see Chapter 2).
April 2012
Minimum continuous service threshold for most unfair dismissal claims increased to two years (see Chapter 10).
2012-18
Launch of roll out of pensions auto-enrolment (see Chapter 4).
April 2013
• publicly funded legal help removed for all employment law disputes except those involving discrimination;
• Jackson reforms to personal injury law — Legal Aid Sentencing and Punishment of Offenders Act 2012 (see Chapter 1);
• collective consultation on redundancies involving 100 or more employees cut to 45 days and limiting of consultation over ending of fixed-term contracts (see Chapter 11);
• limited changes to the DBS regime so that some old and irrelevant offences no longer have to be disclosed (see Chapter 3).
June — July 2013
• changes to the whistleblowing rules, including a new public interest test (see Chapter 10);
• removal of the service requirement for dismissal for a political reason (see Chapter 10);
• tribunal fees and fee remission rules introduced (see Chapter 13);
• new employment tribunal rules of procedure (see Chapter 13);
• “protected conversations” introduced for ordinary unfair dismissal claims, plus new Acas Code of Practice on Settlement Agreements (see Chapter 13);
• changes to the calculation of the unfair dismissal compensatory award (see Chapter 10);
• launch of the DBS Update Service (see Chapter 3).
September 2013
• TUC lodges formal complaint with the European Commission over non-compliance with Agency Workers Directive due to abuse of Swedish derogation (see Chapter 2);
• initial findings of a review into Public Sector Equality Duty. Even though the review concedes that it is too early to judge the Duty’s effectiveness, the review panel makes a series of recommendations, that are implemented immediately, downgrading the effectiveness of the duty (see page 195);
• launch of Employee Shareholder Status (see page 56).
October 2013
• abolition of the Agricultural Wages Board in England. Agricultural workers in England brought under the umbrella of the National Minimum Wage regime. Unite launches a challenge in the European Court of Human Rights (Chapter 4);
• Gangmasters Licensing Authority stops inspecting all applicants for an operating licence and introduces a risk-based policy based on “earned recognition”;
• launch of revised HMRC Naming and Shaming policy for non-payers of the National Minimum Wage (Chapter 4);
• repeal of third party harassment provisions in Equality Act 2010 (see Chapter 6).
November 2013
• Scottish government requires all bidders for public contracts to disclose past involvement in blacklisting as well as remedial action taken;
• Welsh Government issues a Procurement Advice Note calling on all Welsh public bodies to use public procurement to eliminate blacklisting.
January 2014
Changes to the TUPE regulations become law, affecting all transfers on or after 30 January 2014 (see Chapter 12).
March 2014
• the first same sex marriages take place under the Marriage (Same Sex Couples) Act 2013 (see Chapter 6);
• Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 (the Lobbying Act) receives Royal Assent (see Chapter 5);
• cuts to the rehabilitation periods for “spent” convictions become law (see Chapter 3);
• higher penalties introduced for employers who don’t pay National Minimum Wage (see Chapter 4).
April 2014
• Acas Early Conciliation launched. Submitting an Acas Early Conciliation Notification Form optional from 6 April 2014 but becomes mandatory from 6 May 2014. No tribunal claim (except a claim for interim relief) can be issued without an Acas Early Conciliation Certificate (see Chapter 13);
• statutory discrimination questionnaire abolished and replaced by Acas guidance: Asking and responding to questions of discrimination in the workplace (see page 196);
• employers no longer allowed to reclaim SSP from the state. Funds to be allocated to the new Fit for Work Service (see Chapter 7);
• employment tribunal fines introduced for employers who breach employment laws with “aggravating features”, paid to the Treasury, not the claimant (see page 424);
• HMRC changes its rules on pay-roll intermediaries to tackle false self-employment (Finance Act 2014);
• three new Directives enter into EU law, all affecting outsourcing. In particular, a new Public Procurement Directive 2014/24/EU, requires member states to take steps to ensure that environmental, social and labour standards and obligations, including collective agreements, are respected when awarding public contracts to the private sector. All three Directives must be implemented under UK law by April 2016.
14 May 2014
Immigration Act 2014 receives Royal Assent. The new law increases the penalties on employers who employ illegal workers and the checks they must carry out (see Chapter 3).
30 June 2014
Right to request flexible working extended to all employees with 26 weeks’ service (see Chapter 8).
September 2014
Lobbying Act rules on political campaigning come into force, limiting the amount trade unions and other charities can spend on political campaigning and introducing new reporting duties (see Chapter 5);
1 October 2014
• compulsory equal pay audits launched. New power is heavily circumscribed, and is only triggered where an employer has already lost an equal pay claim (see Chapter 6);
• improved rights for qualifying partners to unpaid time off to accompany pregnant partners to ante-natal appointments (see Chapter 8);
• Local Government Transparency Code 2014 requires councils to publish data annually about trade union reps and facility time (see Chapter 5).
December 2014
Fit for Work Service goes “live” with launch of new website and telephone advice. The rest of the service to be phased in gradually over coming months (see Chapter 7).
December 2014 — April 2015
Check-off facilities withdrawn across a range of government departments (see Chapter 5);
January 2015
Ban on employment agencies and employment businesses that operate in Great Britain advertising GB-based roles within the EEA without advertising them in the UK (Conduct of Business and Employment Agencies Amendment Regulations 2014) (see Chapter 2);
March 2015
• Modern Slavery Act 2015 receives Royal Assent. The Act will consolidate existing offences of slavery and human trafficking, lengthen prison sentences, and create a new Anti-Slavery Commissioner. Large employers will owe a new duty to disclose annually steps taken to ensure slavery and human trafficking is not taking place in their organisation or supply chain. The Act is not yet in force;
• Deregulation Act 2015 receives royal assent. Employment provisions (not yet in force) include:
• Removing tribunal power to make wider recommendations. Power to be abolished on 1 October 2015 (see Chapter 6);
• removal of health and safety protection from 4.2 million self-employed workers. Detailed regulations still to be published;
• general duty to consider desirability of economic growth when making new laws;
• changes to apprenticeship funding
• Small Business Enterprise and Employment Act 2015 receives royal assent. Employment provisions (not yet in force) include:
• ban on exclusivity clauses in zero hours contracts (see Chapter 2);
• gender pay gap reporting for private and voluntary sector employers with 250 or more employees, to come into force by no later than Spring 2016;
• duty on regulatory bodies to produce annual reports and report to parliament on the whistleblowing reports they receive and what they have done about them;
• special protections to prevent discrimination against applicants for NHS roles who have previously made protected disclosures — detailed regulations needed;
• new scheme of fines for non-payment of tribunal awards — payable to HMRC not claimant (see Chapter 13);
• limits on tribunal hearing postponements;
• increase to maximum penalty for underpaying the NMW from £20,000 per underpayment notice to £20,000 per worker underpaid;
• new power to regulate to force high-earning individuals who leave public sector to repay exit payments if they return within a short window as an employee, contractor or office holder;
• more changes to number of and funding arrangements for apprentices;
• duty to consider “business impact” of legislation.
March 2015
From 10 March 2015, a criminal offence to require any job applicant (or existing employee) to produce a copy of their criminal record using a data subject access request (Data Protection Act 1998) (see Chapter 3);
5 April 2015
Main employment provisions of the Children and Families Act 2014 come into force:
• shared parental leave for children born or matched or placed for adoption on or after 5 April 2015 (see Chapter 8);
• changes to adoption leave and pay for children matched or placed for adoption on or after 5 April 2015 (see Chapter 8);
• improved rights to time off for adopters to attend meetings in advance of an adoption placement (see Chapter 8);
• extension of rights to qualifying surrogate parents and those fostering for adoption (see Chapter 8);
• age limit of child for unpaid parental leave increases to 18 years (see Chapter 8).
• Part 3 of the Lobbying Act comes into force, applying to unions’ reporting years beginning on or after 6 April 2015:
• new requirement to send membership audit certificate to the Certification Officer;
• unions with over 10,000 members must appoint an “assurer”;
• Whistleblowing protection extended to student nurses and midwives — Protected Disclosures (Extension of Meaning of Worker) Order 2015;
• removal of requirement to buy annuity with pension pot, instead allowing access to whole sum on retirement (Taxation of Pensions Act 2014).
1 July 2015
Deduction from Wages (Limitation) Regulations 2014 to limit backdated claims for unlawful deductions from wages to two years before date of tribunal claim. Statutory payments such as SMP, SSP and statutory guarantee payments will be unaffected (see pages 91-92).
October 2015
• change expected to definition of “race” in Equality Act 2010 to include caste discrimination. Date not yet confirmed (see Chapter 6);
• abolition of tribunals’ power to make wider recommendations (see Chapter 6).