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Introduction
Law at Work, now in its 28th year of publication, is being released against the backdrop of a clear attack on trade union rights and freedoms, in the form of the Trade Union Act 2016, a set of laws that, as Frances O’Grady of the TUC spells out, is “designed to place all the power in the hands of the employer” and to “tilt the scales of justice against ordinary working people”.
The legislation is highly political and strategic. It targets the organisation, funding and political power of unions, especially public sector unions, and coincides with plans for further largescale cuts to terms and conditions, in particular redundancy terms, across the public sector, including local government. Important concessions were won during the passage of the legislation, but the Act in Its final form amounts to a fundamental attack on the right to strike.
New strike thresholds are designed to make it extremely difficult for unions to organise strike action to protect jobs, terms and conditions. Even if lawful action is arranged, other measures such as limiting the life of the strike ballot will upset the balance of power in disputes. Further changes, such as the new requirement for a picketing supervisor who must be readily identifiable to the police, are expected to have a chilling effect on active participation on the picket line. The planned repeal of the established ban on using agency workers to replace striking workers, condemned by the International Labour Organisation as a “serious violation of freedom of association”, threatens to allow employers to engage in lawful strike breaking.
In addition, the office of Certification Officer is to be radically overhauled, with new investigatory powers, backed up by the threat of fines of up to £20,000, tying unions up in red tape.
Paradoxically, these attacks on the right to strike are being conducted during a period in which data from the Office of National Statistics has put strikes at a historically low level. In the current decade, the number of days lost to stoppages is less than a tenth of the level of the 1980s. At the same time, data released by the international Organisation for Economic Cooperation and Development (OECD) shows that the UK has the worst income inequality of all the developed European countries.
The Conservatives also remain committed to repealing the Human Rights Act 1998, legislation which unions have frequently found helpful. It is to be replaced by a “British Bill of Rights”, although an influential House of Lords Committee, the European Union Justice Committee, has called on the plans to be abandoned. In the May 2016 Queen's speech, the government appeared to row back from suggesting that it wants the UK to withdraw from the European Convention on Human Rights, although as recently as the preceding April, this was the line taken by Home Secretary Theresa May.
Finally, tribunal claims remain down by more than 70%, three years after the introduction of tribunal fees. With individual routes to workplace redress severely curtailed for all but the wealthiest, there has never been a more important time to be an active trade union member and to act together to find innovative and effective ways to ensure that worker voice continues to be heard.
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. Law at Work is also backed up by an advice line available to affiliated organisations.
About Law at Work 2016
Law at Work 2016 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.
Law at Work 2016 refers to the legislation as it applies to England, Wales and Scotland (although there are some minor variations in Scotland). However, many of the principles also apply in Northern Ireland, which has its own legislation but with a similar structure. Two significant differences worth highlighting, however, are that there are no tribunal fees in Northern Ireland, and the Trade Union Act 2016 will not be implemented in Northern Ireland.
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 number of important cases this year and details can be found in each Chapter.
Main changes to employment laws: May 2010 — April 2016
Here is a summary of the main new laws or changes to existing laws affecting trade union members dating from May 2010 to May 2016:
1 October 2011
• qualifying agency workers secure new rights under the Agency Workers Regulations 2010 (see Chapter 2).
April 2012
• minimum continuous service for most unfair dismissal claims is raised 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 DBS rules on disclosure of some old and irrelevant offences (see Chapter 3).
Summer 2013
• whistleblowing laws change, including addition of new “public interest” test (see Chapter 4);
• service requirement removed for dismissal for a political reason (see Chapter 10);
• introduction of tribunal fees (see Chapter 13);
• introduction of “protected conversations” for ordinary unfair dismissal claims (see Chapter 13);
• cut in cap on compensatory award for unfair dismissal (see Chapter 10);
• launch of DBS Update Service (see Chapter 3).
September 2013
• TUC lodges formal complaint with European Commission over non-compliance with Agency Workers Directive due to abuse of Swedish derogation (see Chapter 2);
October 2013
• abolition of Agricultural Wages Board in England. Agricultural workers brought under umbrella of national minimum wage regime. Unite launches challenge in European Court of Human Rights. Agricultural wage boards continue in Wales, Scotland and Northern Ireland (see Chapter 4);
• launch of revised HMRC “Naming and Shaming” policy for national minimum wage avoiders (see Chapter 4);
• repeal of provisions fixing employers with liability for third party harassment under Equality Act 2010 (see Chapter 7).
January 2014
• Changes to TUPE (see Chapter 12).
March 2014
• first same sex marriages under the Marriage (Same Sex Couples) Act 2013, see Chapter 7);
• cuts to rehabilitation periods for “spent” convictions (see Chapter 3);
• higher penalties for national minimum wage avoidance (see Chapter 4).
April — May 2014
• Acas Early Conciliation. From 6 May 2014, no tribunal claim (except for interim relief) can be issued without an Acas Early Conciliation Certificate (see Chapter 13);
• statutory discrimination questionnaire abolished and replaced with Acas guidance (see Chapter 7);
• employers no longer allowed to reclaim SSP, which is allocated instead to fund new “Fit for Work” Service (see Chapter 8);
• employment tribunal fines for employers who breach employment laws with “aggravating features”, paid to Treasury, not claimant (see Chapter 13);
• HMRC changes rules on pay-roll intermediaries to tackle false self-employment (see Chapter 2);
• new EU Public Procurement Directive requires member states to take steps to ensure environmental, social and labour standards and obligations, including collective agreements, are respected when outsourcing public services to the private sector, to be implemented in the UK by April 2016;
• Immigration Act 2014 increases employer checks and raises penalties on employers of illegal workers (see Chapter 3).
June 2014
• right to request flexible working extended to all employees with 26 weeks’ service (see Chapter 9).
September 2014
• new rules come into force limiting the amount trade unions and charities can spend on political campaigning (see Chapter 5).
1 October 2014
• compulsory equal pay audits introduced (see Chapter 7);
• new rights for qualifying partners to unpaid time off to accompany pregnant partners to ante-natal appointments (see Chapter 9);
• new requirement for councils to publish yearly data about trade union reps and facility time (see Chapter 5).
December 2014
• Fit for Work Service goes “live” (see Chapter 8).
January 2015
• ban on GB employment agencies and employment businesses advertising GB-based roles within the EEA without advertising them in the UK (see Chapter 2).
March 2015
• Modern Slavery Act 2015 becomes law (see Chapter 3);
• Scottish Affairs Select Committee publishes final report into construction blacklisting (see Chapter 5);
• Small Business, Enterprise and Employment Act 2015 receives royal assent. The Act allows for regulations to 'claw back' and also to cap public sector exit payments (see Chapter 11).
April 2015
• main employment provisions of Children and Families Act 2014 come into force (see Chapter 9) including:
◊ shared parental leave;
◊ changes to adoption leave and pay;
◊ improved rights to time off for adoption meetings;
◊ extension of rights to qualifying surrogate parents and those fostering for adoption;
◊ age limit for unpaid parental leave increases to 18 years.
• new union reporting obligations, including:
◊ new obligation to send membership audit certificate to the Certification Officer;
◊ unions with over 10,000 members must appoint an “assurer” (see Chapter 5).
• abolition of requirement to buy annuity with pension pot;
• new National Minimum Wage Regulations 2015 consolidate existing laws (see Chapter 4);
• whistleblowing protection extended to student nurses and midwives (see Chapter 4);
• NHS trade unions reach agreement with Department of Health and NHS Employers over changes to redundancy pay.
1 July 2015
• new cap on arrears claims for unlawful deduction of wages in the Employment Tribunal at two years’ wages, including national minimum wage claims (see Chapter 4).
October 2015
• abolition of tribunal power to make wider recommendations (see Chapter 7);
• removal of statutory health and safety protection for many self-employed workers (Deregulation Act 2015, Health and Safety at Work Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015) (see Chapter 2).
December 2015
• new regulations in Scotland — the Public Contracts (Scotland) Regulations 2015 — regulate outsourcing, including limit on use of organisations who have admitted to or been found guilty of blacklisting (see Chapters 5 and 12).
January 2016
• new regulations prevent employers penalising zero hours contract workers who work for another employer in breach of a contractual ban (see Chapter 2);
• Publication of Transgender Inquiry report (see Chapter 7).
March 2016
• European Commission launches new consultation on improving Posted Workers Directive (see Chapter 2);
• government plans to devolve Sunday trading laws to local authorities defeated in the House of Commons (see Chapter 4);
• Scotland Act 2016 secures Royal Assent on 23 March 2016 devolving some law-making powers to Scottish government, including powers over some equality laws, employment tribunals and tribunal fees (see Chapter 1).
April 2016
• new minimum salary requirement of £35,000 for “Tier 2” workers to qualify for indefinite leave to remain (with some occupational exceptions – see Chapter 3);
• launch of “national living wage” for workers aged 25 and older (see Chapter 4);
• launch of New State Pension, replacing the basic and additional state pension (see Chapter 4);
• increase to penalties for national minimum wage avoidance (see Chapter 4);
• new penalties for employers that do not pay tribunal awards or Acas settlements (see Chapter 13).
April — May 2016
The Enterprise Act 2016 (royal assent, 4 May 2016):
• power to make new regulations to cap public sector exit payments (see Chapter 11);
• new Institute of Apprentices regulating apprenticeship quality;
• power to make new regulations to relax rules for giving notice on Sunday working for some workers (see Chapter 4).
The Trade Union Act 2016 (royal assent, 4 May 2016: implementation dates not yet announced):
• new balloting, voting and notice restrictions, including additional requirements for “important public services”, and new limits on life of ballot;
• new restrictions on picketing, including requirement for a “picket supervisor”;
• new power to enact regulations to compel detailed reporting by public sector employers of facility time;
• new reporting duties and powers on Certification Officer to investigate unions, and new penalties of up to £20,000;
• new power to introduce a levy to be paid by unions and employers’ associations to fund Certification Officer;
• new restrictions on union political levy.
Separately, draft statutory regulations have been prepared, to lift the ban on using agency workers to break strikes.
The Immigration Act 2016 (royal assent, 12 May 2016)
• new criminal offence of illegal working, with power for police to seize wages;
• new language “fluency” requirement for public sector workers in “customer facing” roles (see Chapter 3).
• expansion of remit and powers of Gangmasters’ Licensing Authority, to be renamed the Gangmasters and Labour Abuse Authority (see Chapter 3);
• creation of a new regulator — the Director of Labour Market enforcement (see Chapter 3).
June 2016
• deadline for enforcement of EU posted workers enforcement directive (see Chapter 2);
• UK referendum on whether to remain a member of the EU will take place on 23 June 2016 (see Chapter 1).
October 2016
• new regulations for £95,000 cap on public sector termination payments, and 'claw-back' of some termination payments. The devolved nations will not be obliged to implement the cap (see Chapter 11);
• separate consultation on changing the formula used to calculate redundancy payments across public sector in order to cut payments closed in May 2016 (see Chapter 11).
• draft regulations to introduce compulsory gender pay gap reporting for employers of 250 or more employees.
No published timescale
The Conservatives intend to publish a draft “British Bill of Rights” and to repeal the Human Rights Act 1998 (see Chapter 1).