Introduction

[pages 14-22]

This 2014 edition of Law at Work marks 26 years of the Labour Research Department’s publication of our comprehensive employment law guide. The booklet records another year of attacks on employment rights at both individual and collective levels.

At the individual level, the main theme of the last twelve months has been the coalition government’s attack on access to justice, characterised most clearly by the introduction of tribunal fees. A brave judicial review challenge to the fee regime by public services union UNISON (see page 31) has highlighted how fees deter potential claimants from bringing all kinds of claim, impacting in particular, on women, disabled and ethnic minority workers.

A toxic combination of high fees, low prospects of success, low awards, an ungenerous and impenetrable fee remission process, and barriers to the recovery of awards, even if a claim is successful, have resulted in an entirely predictable collapse in tribunal claims. Statistics produced by the Ministry of Justice in March 2014 revealed a 79% fall in claims between October-December 2013, compared with the same period in 2012. As trade union barrister John Hendy QC has said, it would take “a claimant with nerves of steel, unquenchable optimism and an insatiable desire for vengeance at any cost to pursue these odds. Any experienced gambler would walk away.”

At the collective level, the twelve months since the last edition of LRD’s Law at Work, have brought more bad news and little to celebrate from the perspective of trade union rights and collective organisation. Two particular examples stand out. The first is the ideological attack on the right to bargain collectively, seen in changes to the Transfer of Undertaking Protection of Employment Regulations 2006 (see page 381). The second is the disappointing refusal by the European Court of Human Rights to lift the ban on secondary action, despite support from the International Labour Organisation and the European Committee on Social Rights, both of whom have consistently criticised the ban (see page 246).

In a hostile political and economic climate for ordinary working people, there has never been a more important time to be an active member of a trade union. 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, and to win victories for their members through negotiation and persuasion.

About Law at Work 2014

Law at Work 2014 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 Labour Research Department’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 2014 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.

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, across each of the Chapters in this booklet, on topics including:

Employment tribunal systems

• UNISON judicial review of tribunal fees (page 31).

Categories of worker

• the “Swedish derogation” (page 65);

• the protection of agency workers under the Agency Workers Regulations (page 64);

• the status of agency workers (page 67);

• false self-employment (page 49).

Starting work and the employment contract

• establishing contract terms based on custom and practice (page 82);

• consultation and the duty of mutual trust and confidence (page 83);

• enforcing an illegal contract (page 88);

• resisting challenge to contract terms (page 95).

Terms and conditions

• National Minimum Wage when sleeping overnight (page 100);

• National Minimum Wage when travelling between assignments (page 102);

• rest breaks (page 114);

• use of express contract terms to permit deductions (page 107);

• annual leave and sickness absence, the rules for the extra 1.6 weeks of leave (page 120);

• calculating holiday pay (page 117).

Trade union organisation

• trade union recognition (page 127);

• what is a trade union? (page 129);

• anti-union blacklisting (page 133);

• check off arrangements (page 145).

Discrimination

• the test for disability, including back pain and obesity (page 149);

• what must the employer know about your disability for you to be protected? (page 153);

• caste discrimination (page 156);

• sexual orientation discrimination and pension benefits (page 155);

• pregnancy discrimination (pages 158)

• what beliefs are protected by the Equality Act 2010? (page 157);

• working on Sundays (page 171);

• harassment by a third party (page 178);

• can you rely on the Equality Act 2010 if you are employed via a service company? (page 160);

• what is indirect discrimination? (page 168);

• duty to make reasonable adjustments — there are several new case law examples (page 172);

• victimisation for lodging multiple grievances (page 181);

• age discrimination in the context of the Civil Service Compensation Scheme (page 352);

• continuing discrimination (page 202).

Sickness absence and sick pay

• surveillance of workers (page 223);

• calculating disability-related sick leave (page 218).

Family friendly policies

• flexible working (page 242).

Industrial action

• ban on secondary action (page 246);

• industrial action balloting restrictions (page 256).

Dismissal

• what is a dismissal? (page 267);

• when is the Effective Date of Termination? (page 300);

• investigation standards, including CCTV and interviewing witnesses (page 281);

• warnings (page 283);

• relevance of the European Convention on Human Rights (page 281);

• trade union-related dismissals (page 139);

• the statutory right to be accompanied (page 297);

• reinstatement (page 306).

Redundancy

• voluntary redundancy (page 319);

• collective consultation — no more establishment test? (page 326);

• collective consultation and information about agency workers (page 323);

• challenging the independence of a standing representative body (page 328);

• the “special circumstances” defence to a protective award (page 331-332);

• reasonable adjustments for disabled employees at risk of redundancy (page 336);

• suitable alternative employment (page 343);

• compensation for lost opportunity to take a job share (page 309);

• contractual redundancy pay (page 350);

• redundancy and age discrimination (page 352).

TUPE

• service provision change (page 362);

• organised grouping of employees (page 361);

• exemption for single specific event or task of short-term duration (page 364);

• duty to consult is owed only to the employer’s own employees (see page 371);

• which employees are affected for the purposes of the consultation duty? (page 371);

• sector level collective agreements and TUPE (page 382);

• resisting changes to contract terms (page 384).

Summary of changes to employment legislation

As well as case law changes, there have been a significant number of changes to legislation. Here is a summary of the main legislative changes since April 2013, as well as those expected, proposed or threatened during 2015 and beyond.

April 2013

• legal help and legal aid removed for employment law (except discrimination);

• Jackson reforms to personal injury law introduced (see Chapter 1);

• collective consultation on redundancies involving 100 or more employees cut to 45 days and changes affected fixed-term contracts (See Chapter 11);

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 1);

• new employment tribunal rules of procedure (see Chapter 1);

• “protected conversations”, plus new Acas Code of Practice on Settlement Agreements (see Chapter 1);

• changes to the calculation of the unfair dismissal compensatory award (see Chapter 10);

• launch of the government DBS Update Service (Disclosure and Barring) (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 exemption (see Chapter 2);

• initial findings of review into Public Sector Equality Duty published. Even though the review panel concedes that it was too early to judge the effect of the Duty, the panel makes a series of recommendations to be implemented immediately, downgrading the effectiveness of the duty (see page 199);

• launch of “Employee Shareholder Status” (see page 70).

October 2013

• abolition of the Agricultural Wages Board. Agricultural workers 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” (see page 51)

• launch of revised HMRC Naming and Shaming policy for employers who do not pay the National Minimum Wage (Chapter 4);

• repeal of provisions in Equality Act 2010 prohibiting third party harassment (see Chapter 6);

December 2013

• government publishes its Modern Slavery Bill.

January 2014

• changes to the TUPE regulations become law for all transfers on or after 30 January 2014.

March 2014

• the first same sex marriages take place under the Marriage (Same Sex Couples) Act 2013 (see Chapter 6);

• the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014, receives royal assent. It has no implementation date as yet;

• important changes reduce the length of the rehabilitation periods after which convictions become “spent” (see Chapter 3);

• higher penalties introduced for employers who fail to pay the National Minimum Wage (see Chapter 4).

April 2014

• Acas early conciliation introduced. Contacting Acas under the new regime optional from 6 April 2014 but mandatory from 6 May 2014 (see Chapter 1);

• the Gangmasters Licensing Authority moves to the Home Office (see page 51);

• the statutory discrimination questionnaire is abolished and replaced by Acas guidance: Asking and responding to questions of discrimination in the workplace (see page 200);

• employers can no longer reclaim SSP from the state. Instead, the funds are to be used to fund a Health Work and Wellbeing Service (see Chapter 7);

• employment tribunal fines introduced for employers who breach employment laws with “aggravating features”. The fines are paid to the Treasury, not the claimant (see page 40);

• HMRC changes its rules to prevent pay-roll intermediaries being used to avoid employment and tax obligations through false self-employment (Finance Bill 2014).

Summer 2014

• the Immigration Bill is expected to receive Royal Assent by the end of the spring 2014 parliamentary session. 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

• the right to request flexible working is to be extended to all employees with 26 weeks’ service (see Chapter 8).

1 October 2014

• compulsory equal pay audits are planned, but this power is to be heavily circumscribed, and will only be 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);

• improved rights to time off for adopters to attend meetings in advance of an adoption placement (see Chapter 8).

April 2015

• 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);

• extension of rights to qualifying surrogate parents and those fostering for adoption (see Chapter 8).

Some time during 2015

• promised change to definition of “race” in Equality Act 2010 to include caste discrimination (see Chapter 6);

• upper age limit for unpaid parental leave is to increase to 18 for all children in 2015 (see Chapter 8).

Further legislative change with no programmed implementation date

The Deregulation Bill, currently making its way through parliament, contains a number of planned changes:

• a plan to exempt from health and safety protection all self-employed workers except those working in one of a list of prescribed occupations, described by TUC general secretary Frances O’Grady as a “huge step backwards”;

• the abolition of the employment tribunal’s power to make wider recommendations (see page 204);

• changes to apprenticeship funding;

• a general duty on regulators to have regard to the “desirability of economic growth” when exercising their functions.

Employment laws under review

The government’s Employment Law Review ends in 2015 but employment legislation, and in particular the right to take industrial action, is likely to be a key political issue in the run up to the election including in particular:

• Industrial action:

◊ the terms of reference of the Carr review into industrial action were announced in March 2014 and the review is supposed to take six months. The terms are now limited to “the alleged use of extreme tactics in industrial disputes”, including leverage, and the effectiveness of existing laws to prevent “inappropriate or intimidatory actions” in trade disputes. The TUC describes the review as a “headline grabbing party political stunt” (see Chapter 9);

◊ demands for changes to the industrial action balloting threshold are being repeated. The Conservatives have announced that if elected in 2015, they will introduce a ballot participation threshold of 50% in “essential services”. Commenting on the proposal, GMB general secretary Paul Kenny pointed out that in a general election, not one of the MPs in the current parliament would have passed this test (see Chapter 9: Industrial action);

• Zero-hours contracts: Legislation is promised, but the proposed changes to the law by both parties have significant limitations. (See box on page 54);

• European social rights: The Labour Party has ruled out a referendum on EU membership in the next parliament, unless there is a significant transfer of powers. By contrast, prime minister David Cameron wants the Conservative party to enter the 2015 election offering voters an “in-out” referendum, with the choice between leaving the EU altogether, or remaining in Europe on the basis of a renegotiated treaty, “repatriating” key social workplace rights including rights protecting agency workers (see Chapter 2), working time and holiday rights (see Chapter 4) and health and safety protection. In practice, this “repatriation” can only be achieved by rewriting the European Union Treaty, which requires every EU member state to agree with him.