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April 27, 2015

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Busy day at work: the next Minister for #ukemplaw should not be a part-timer

The polls still suggest a close result but, with the Tory campaign in disarray and their supportive press barons suffering a collective nervous breakdown, I’ve started to feel vaguely optimistic that the next BIS employment relations minister will be a talented Labour MP such as Gloria De Piero, Stella Creasy or – if he survives the SNP tsunami – the excellent Ian Murray. And the reported remarks of Labour’s Lord Falconer, that the shadow cabinet has “very, very few” machinery of government changes in mind, has set me thinking about just how long a ‘to do’ list the new BIS minister would find waiting for them on their desk at 1 Victoria Street.

Because, as easy as it is to criticise the Labour manifesto for its lack of ambition on employment law-related reform, and the woolliness (ET fees) and/or daftness (zero-hours contracts) of some of its specific policy pledges, there’s actually quite a lot for a new Labour employment relations minister to be getting on with. In their first 12 months in the job, she or he will need to devote time and energy to some or all of the following work strands:

  • Working out how to translate the high-profile manifesto pledge to “ban the abuse of zero-hours contracts” into meaningful policy action;
  • Initiating the promised process, jointly led by the CBI and TUC, for agreeing reforms to the ET fees regime and – seemingly – the ET system more generally;
  • Working out how to implement a package of woolly pledges to enhance enforcement of the minimum wage (increased fines/penalties for non-compliance, a role for local authorities, a reformed/beefed up Low Pay Commission, and a possible new emphasis on criminal prosecutions);
  • Launching a consultation on “allowing grandparents who want to be more involved in caring for their grandchildren to share in parents’ unpaid parental leave”;
  • Developing a plan to “tackle exploitation in the care sector as a route to protecting staff and improving standards”;
  • Responding to the findings of the Equality & Human Rights Commission’s inquiry into pregnancy and maternity discrimination in the workplace (originally due out in March, but postponed until after the election);
  • Working out how to translate the pledges to “tackle undercutting by rogue employment agencies”, including by “taking action to crack down on rogue agencies that exploit workers illegally for profit”, and to “extend the Gangmasters’ Licensing Authority approach to cover sectors where there is evidence of high levels of migrant labour and exploitative working practices” into meaningful policy action; and
  • Preparing a Bill to legislate as necessary in relation to these and other strands of work.

That’s quite a ‘to do’ list for anyone to cram into five days a week, let alone someone who has a second job as a constituency MP. Yet the position of BIS employment relations minister has always been both a junior and a part-time role – the remit of the Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs currently covers, in  addition to employment relations: Post Office and postal policy; consumer policy and consumer affairs; competition policy; corporate governance; company law; social enterprise; Insolvency Service, including company investigations; and BIS better regulation, efficiency and reform agenda.

So, if Labour are serious about “supporting firms to win the race to the top, not get dragged into a race to the bottom”, perhaps one minor ‘machinery of government’ change they should consider is separating employment relations and consumer affairs, and appointing a Minister of State for Employment Relations. Some of of the above work strands will involve tricky negotiations with HM Treasury, the Ministry of Injustice and other departments, and on ET reform the minister will no doubt need to bang heads together at the CBI and TUC, so it would be handy not to be at the very bottom of the ministerial food chain. And promoting the position to Minister of State level would widen the talent pool from which to select what should be a prominent voice in any Labour government formed after 7 May.

Postscript: As if I hadn’t made the case well enough above, today the following photograph emerged, showing that the current holder of the post is too exhausted from her ministerial duties to notice that her campaign team are holding her placards upside down.

Nosnims

 

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April 18, 2015

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Manifesto mania: NMW enforcement not a job for the Home Office

So, we’ve had the Labour manifesto. And the Labour manifesto for Work, the Labour manifesto for Women, the Labour manifesto for Young People, and the Labour manifesto for Black and Ethnic Minority communities. I imagine before 7 May we’ll have the Labour manifesto for Dog Owners, and the Labour manifesto for People Who Listen to the Archers. But today it seems we will get the Labour manifesto for Home Office officials.

According to a report in the Guardian, the main feature of this will be a new “Home Office investigative unit” to target “the illegal exploitation of migrant workers”. This will consist of a “team of more [than] 100 police officers and specialists from the Gangmasters Licensing Authority”, who will be given “new powers to stop the abuse of workers and increase the prosecutions and fines of employers who breach employment laws”.

It’s far from clear how much this new unit will cost, but the Guardian reports “it will be paid for by levying a charge on non-visa visitors to the UK which is expected to raise £55 million”. And the unit will have “one overriding duty”:

To stop the abuse that makes the working families of Britain poorer. This new unit will have the powers and funding it needs to increase the prosecutions and convictions of Britain’s worst employers: those who exploit workers and drag down the wages of everyone else.

All of which glosses over the fact that we already have not one but four public bodies (or units) with much the same overriding duty: the aforementioned Gangmasters Licensing Authority, the national minimum wage (NMW) enforcement unit of HMRC, the BIS Employment Agency Standards Inspectorate (EAS), and the working time directive unit at the Health & Safety Executive. And, to access one or more of these bodies, you have to contact a fifth: Acas.

All of these bodies/units are severely underfunded: HMRC currently gets just £12 million a year to enforce the NMW, the GLA just under £3 million, and the EAS is about five people. And, if you were a government minister with a blank sheet of paper and some £15 million to spend on ‘tackling Britain’s worst employers’, you wouldn’t design a system with four (or five) separate bodies or units. You might, as Vince Cable suggested last year, create a Workers’ Rights Agency (or, say, a Fair Employment Agency), with “the powers and funding it needs” to tackle Britain’s worst employers. (Sadly, that suggestion hasn’t got much further than the inside of Dr Cable’s head, but at least he and the Lib Dems are thinking on the right lines).

So, if you are a new minister on 8 May, charged with the same remit, and have as much as a further £55 million to spend, you really shouldn’t create yet another public body (or unit). And YOU CERTAINLY SHOULDN’T PUT IT IN THE FUCKING HOME OFFICE.

headdesk

[Postscript: here’s the Labour press release on Miliband’s speech]

 

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April 16, 2015

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Are there really no votes in employment rights?

So, the longest general election campaign in history – it surely started at least 12 months ago – has at last reached its final phase, with the three main political parties publishing their manifestos over a frantic three days at the start of this week. This blog’s founder, the fantabulous Sean Jones QC, has put his sanity at risk (so that you don’t have to) by ploughing through their combined 330 pages and documenting every last relevant policy commitment in the Hard Labour Guide to #ukemplaw Election Pledges. But I can’t resist adding a bit of (highly) subjective commentary.

Overall, it’s hard to avoid concluding that all three main parties see no great electoral advantage in trying to improve the working lives of some 30 million people. In 330 pages, there is just one mention of ‘flexible working’, and even that is just a reference (by the Lib Dems) to the Coalition’s extension of the right to request FW in 2014. Labour and the Liberal Democrats each use the word ‘exploitation’ in relation to workers just once, and the Tories four times – but five of those six uses of the word are in relation to migrant workers. Zero-hours contracts get six mentions by Labour, two by the Liberal Democrats, and one by the Tories, but there are no new ideas on how to tackle the exploitative use of such contracts. Despite the Coalition having handed the EHRC £1m to investigate “systemic” maternity discrimination, the issue gets just one brief mention (by Labour). And there is no mention anywhere of unfair dismissal.

Disappointingly, there is no space in the Liberal Democrats’ whopping, 160-page tome for Vince Cable’s October 2014 promise of a new Workers’ Rights Agency to “revamp efforts to enforce employment law and tackle the exploitation of workers” by combining the remits of “the minimum wage enforcement section of HMRC, the working time directive section at the Health & Safety Executive, the BIS Employment Agency Standards Inspectorate, and the GLA.” Perhaps I shouldn’t have pointed out that this was my idea. [Since I wrote this post, Jo Swinson has responded to a tweet from Sean Jones, saying “the idea still there” – ‘there’ presumably being the inside of Vince Cable’s head.]

Regular readers of this blog – hello David, Gem, Michael, Paul and Peter! – will not be surprised to hear that the first object of my skim reading was the issue of employment tribunal fees. The Tories let the cat out of the bag by claiming credit for “reducing the burden of employment law through our successful tribunal reforms” – that’s not what they said about their hefty, upfront fees at the time – and Labour can only find space for a tweaked, two-sentence version of the pledge previously set out in its Manifesto for Work:

The Conservatives have introduced fees of up to £1,200 for employment tribunal claimants, creating a significant barrier to workplace justice. We will abolish the Government’s employment tribunal fee system as part of wider reforms to make sure that affordability is not a barrier to workers having proper access to justice, employers get a quicker resolution, and the costs to the tax payer do not rise.

However, as noted previously on this blog, this raises at least as many questions as it answers. And note that the Manifesto for Work’s “costs to the taxpayer are controlled” has mutated to the arguably more restrictive “do not rise”.

Somewhat surprisingly, the Liberal Democrats are even more parsimonious on the subject of what their BIS employment relations minister, Jo Swinson, recently described as “one of the most high-profile debates around employment law in the last Parliament”. Their manifesto manages just a wishy-washy half sentence:

We will improve the enforcement of employment rights, reviewing employment tribunal fees to ensure they are not a barrier.

Whoopie doo. The Liberal Democrats devote more space to a promise of legal protection for bumblebee nests. Clearly, worker bees are more important than workers to a Liberal Democrat economy.

On the plus side, all three parties pledge to work to close the gender pay gap. The Tories say they “want to see full, genuine gender equality. The gender pay gap is the lowest on record, but we want to reduce it further and will push business to do so: we will require companies with more than 250 employees to publish the difference between the average pay of their male and female employees”. Similarly, a Labour government would “go further in reducing discrimination against women, requiring large companies to publish their gender pay gap and strengthening the law against maternity discrimination” – though there’s no indication of how they would do the latter. The Liberal Democrats only have enough space to say they would “work to end the gender pay gap, including with new rules on gender pay transparency”. The voting public could be forgiven for not realising that  little if any of this is new, mandatory gender pay gap reporting having been one of the last actions of the Coalition.

More positively, all three parties commit to the national minimum wage, and it’s especially heartening to see the Tories confirm they “strongly support the [NMW] and want to see further real-terms increases in the next Parliament”. They go on to expose the pathetic timidity of Labour’s promise of £8 per hour from October 2019, by stating: “We accept the recommendation of the Low Pay Commission that the [NMW rate] should rise to £6.70 this autumn, on course for a [rate] that will be over £8 by the end of the decade”. This is accompanied by a pledge to increase the tax-free Personal Allowance from £10,600 to £12,500, so that “those working 30 hours on the minimum wage pay no Income Tax”.

However,  as the FT’s John McDermott notes, this pledge is “less than it seems”, as a minimum wage rate of £8 per hour by the end of the decade would mean £12,480 per year for a worker on 30 hours per week. So, “give or take £20, [a Personal Allowance of £12,500] won’t make any tangible difference”. In any case, most workers on the minimum wage work fewer than 30 hours per week, so already pay very little if any Income Tax. And then there’s National Insurance.

Much the same can be said of the Tories’ other eye-catching move to outbid Labour’s core childcare offer (an expansion of “free childcare from 15 to 25 hours per week for working parents of three and four-year-olds, paid for with an increase in the bank levy”) with a pledge to “give families where all parents are working an entitlement to 30 hours of free childcare for their three and four year-olds”. This pledge is costed at £350m, which sounds too good to be true – and it is. As Sarah Hayward, leader of Camden council, points out in a splendid demolition job, the Tories have previously ‘costed’ Labour’s less ambitious pledge at £1.5bn (Labour’s own figure is £800m). So, to deliver 50% more extra hours than Labour for just £350m, “the quality of the childcare would need to be so appalling that no right-minded parent would ever subject their child to it”.

Elsewhere, the Liberal Democrats re-iterate their offer of an extra four weeks of paternity leave, but only at the current, lousy rate of pay (£138 per week, or just 60% of the NMW), and Labour repeats its February 2015 pledge of an extra two weeks, paid at a much more respectable £260 per week. And, in Labour’s separate Manifesto for Women, issued two days after the main event, there is an interesting promise to “consult on allowing grandparents who want to be more involved in caring for their grandchildren to share in parents’ unpaid parental leave, enabling them to take time off work without fear of losing their job”. This has been welcomed by the CBI, and represents a significant and well-deserved win for Grandparents Plus, which has mounted a sustained campaign on the issue.

And that’s about it. I just hope that, in 2020, at least some of the political parties will bear in mind the axiom that less is more. Because I just don’t think Sean Jones could survive 330 pages again.

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February 24, 2015

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Labour losing race to the top on employment rights policy

So, the supposedly free-market Tories have had their Stalinist-sounding ‘long-term economic plan’, and now Labour has a ‘better economic plan’. Towards the end of the latter, a chapter entitled ‘Supporting firms to win the race to the top, not get dragged into a race to the bottom’, states:

Too often it is assumed that the only way for firms in sectors such as retail, hospitality and social care to compete is by cutting employee pay and conditions. But many firms in these sectors want to be able to compete through higher skill, higher wage business models, without being undercut and dragged into a race to the bottom.

The [Coalition] Government has actively encouraged a race to the bottom by weakening the UK’s enforcement regime and promoting a hire-and-fire culture: doubling the qualification period for unfair dismissal, introducing fees for employment tribunals, and setting up a controversial scheme whereby employees trade their employment rights in return for a share in the company.

[Labour’s new industrial strategy] is about giving employers the tools they need to raise standards, and also protect them from being undercut, by raising the minimum wage, ending the abuse of zero-hours contracts, and making it illegal to use agency workers to undercut wages and conditions.

Bafflingly, there’s no further mention of – let alone any pledge to reverse – that doubling of the unfair dismissal qualifying period. Nor is there any mention of Labour’s previous pledge to reform the tribunal fees that have done so much damage to the ‘enforcement regime’. Given that employer lobby groups such as the CBI and FSB have openly called for the hefty fees to be substantially lowered, this is an astonishing omission from what is clearly intended to be a business-friendly document.

Indeed, once you cut through the rather repetitive references to ‘the race to the bottom’ and ‘raising our ambitions for the domestically-traded sectors’, there are precious few commitments to policy reform that might actually help achieve the plan’s lofty goals. Apart from reiterating both welcome plans to “encourage more employers to pay a living wage” and the disappointingly modest pledge to “increase the minimum wage to £8 an hour before 2020”, the 80-page document sets out just three broad policy pledges specific to “reducing the pressures employers face to get dragged into a race to the bottom”:

1. Banning the abuse of zero-hours contracts: giving workers on zero-hours contracts new legal rights to be protected from employers forcing them to be available at all hours, insisting they cannot work for anyone else, or cancelling shifts at short notice without compensation, and giving workers on zero-hours contracts who are actually working regular hours week-in week-out a right to a contract with fixed minimum hours. We will also introduce a new Acas Code of Practice [on zero-hours contracts].

This is all very well, but – as I’ve previously noted elsewhere and the document itself recognises just two paragraphs later, in relation to enforcement of the minimum wage – there is no point having rules if they are not enforced. And, presumably, the only way to enforce these proposed new rules would be for individual workers to pursue a tribunal claim against their abusive employer. Which very few workers would be likely to do, even without the fees of up to £1,200 on which the document is so surprisingly silent. So, new Labour ministers could huff and puff all they like, but their shiny new rules wouldn’t blow many rogue employers down.

2. Tackling undercutting by rogue employment agencies: taking action to crack down on rogue agencies that exploit workers illegally for profit – for example through a licensing system that ensures agencies are complying with basic standards or stopped from operating; extending the Gangmasters Licensing Authority approach to cover sectors where there is evidence of high levels of migrant labour and exploitative working practices; and closing the loophole in the Agency Workers Directive that allows agency workers to be used to undercut employees.

This is more encouraging, even if it is somewhat ill-defined. However, both the employer lobby groups and past Labour ministers have been strongly against extending the GLA’s licensing regime to other sectors – with good reason. And, since 2010, Coalition ministers have reduced the BIS employment agency standards inspectorate to a rump of just three staff. So it’s not at all clear who Ed Miliband, Rachel Reeves and Chuka Umunna think would do all the cracking down. In short, there’s a lot of work yet to be done on this policy pledge if it’s to become more than a vague sop to the TUC, which has stuck rigidly to its call to extend the GLA regime.

3. Ensuring proper enforcement of the rules: there is no point in having rules if they are not enforced. Under this Government, the number of inspections into whether the National Minimum Wage was being paid has more than halved and there have been just two prosecutions since 2010. There is widespread agreement that better enforcement would support employers that play by the rules. Labour will improve this by: increasing the fines for breaching the minimum wage to £50,000; extending the remit of the HMRC minimum wage unit to cover holiday pay; giving councils a role in enforcement; and trebling the fines for knowingly employing illegal migrants.

The last of this third set of policy actions is little more than dog whistle politics, but there’s a good case for capitalising on the local, front-line knowledge of councils in order to improve enforcement of the NMW. And extending the HMRC unit’s remit to cover holiday pay is something I suggested in 2011, as an obvious first step in incrementally fusing the HMRC unit and the GLA into a genuine fair employment agency; more recently, it was a recommendation of the June 2014 report on low pay by Alan Buckle.

But Labour are kidding themselves – and the voting public – if they think that increasing the maximum penalty for breaching the NMW to £50,000 will have more than a marginal impact. For the penalty is set at 100 per cent of the total arrears owed, and in all but a handful of cases that sum is relatively small, and certainly well below £50,000. For example, among the 162 NMW-flouting firms named and shamed by BIS to date, including the tranche of 70 named today, the total arrears owed – and so the penalty imposed – was less than £10,000 in 154 cases, and exceeded the current maximum of £20,000 in just four cases. And, as they each involved a number of workers, those four cases would have been more than adequately covered by the Government’s proposed new maximum penalty of £20,000 per underpaid worker, set out in the Small Business, Enterprise & Employment Bill and almost certain to become law before Parliament is dissolved on 30 March.

Of course, Labour could increase the penalties by increasing the penalty rate from 100 per cent of the arrears owed to, say, 200 per cent. But that’s quite different to what Labour are saying they would do, and might be quite hard to justify when, in the vast majority of cases, the total sum owed in underpayments is relatively small, and the employer is a (very) small business. Among the 162 firms named and shamed by BIS, the average underpayment per worker was just £306.11, and no fewer than 35 of the 162 firms are hairdressers or beauty salons. We’re (mostly) not talking big corporates here.

All in all, Labour’s ‘better economic plan’ is depressingly short on credible, fully-formed (and costed) policy ideas for halting the race to the bottom in pay and working conditions. The good news is that I’m available to help sort that out, and my daily rate is a lot less than Jack Straw’s.

Waiting for your call, Chuka.

 

 

 

 

 

 

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February 13, 2015

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Rights At Work

“Workers and their families have always distrusted the law, and rightly so. It is not an instrument geared to our needs, and the people who administer it are unrepresentative, out of touch and antagonistic to our demands. Nevertheless, through political and industrial action workers have secured a set of legal rights which can be exploited.

Use the law only when industrial activity fails…Going to law is always a risky business-it takes time, it exposes individual workers to publicity and harassment, it hardens attitudes, and workers rarely win outright…You should only use the law when all prospect of solving an industrial problem through negotiation, conciliation or industrial action have vanished”.

Powerful words especially if you are a young, post-grad student about to start writing a thesis with the pretentious title “The Historical Development of Individual Employment Law”. They are from the first 2 paragraphs of “Rights At Work, A Workers Guide to Employment Law” published in 1979 by Pluto Press.  This book was found on the shelf of many union officials and quite a few labour lawyers, including myself in the 1980’s.

The words quoted above deliberately echo the famous opening words of “The Worker and the Law” by his teacher at the LSE, Bill Wedderburn

“Most workers want nothing more of the law than that it should leave them alone”

The author has just died, tragically young…HHJ Jeremy McMullen QC.  He was then an official in the General and Municipal Workers Union.  Subsequently he became a practising barrister, QC and Senior Judge at the EAT until 2013.  A pretty unique career path.

I leave it to others to write his obituary.  My purpose is to explore whether Jeremy was right and whether what he said above is still valid today.

In 1968 the Dagenham Fords Sewing Machinists (as in the film and now  musical with the earworm of a title tune, “Made in Dagenham”) went on strike for equal pay.  They wanted re-grading from unskilled B grade to semi-skilled grade C.  They settled for a wage rise to 100% of B grade but not the re-grading to grade C.  They didn’t get “equal pay” with their male colleagues.

In 1983, the Equal Value Amendment Regulations were introduced by a reluctant Tory government on the back of an adverse European Court judgment.  The first case brought to tribunal in 1984 was by the same Dagenham Fords Sewing Machinists making the same demand for re-grading. They argued their work was of equal value to that of the male semi-skilled grade C workers.  My firm was instructed by the union to act.  I was a lowly articled clerk taking notes at conferences and running errands.  Suffice to say the case was lost as was an appeal.  The women then went on strike in December 1984 and stayed out for 9 weeks closing down production. Arbitration through ACAS led to a ruling that they should be re-graded to grade C.

Ten years later, a union activist on the Underground was dismissed for allegedly assaulting a manager.  Now qualified as a solicitor, I was instructed by the union to take a claim to the tribunal for interim relief on the grounds of union membership and activity.  The case was won, mainly due to the brilliance of my client in the witness box.  London Transport refused to reinstate and so the tribunal made a continuation of contract of employment order (I remember being quoted in the Evening Standard, saying how outrageous it was that tax payers money was being wasted paying my client to tend his garden).  The Central Line then had a 1 day strike, the matter was referred to an ACAS conciliator and my client got his job back.  He is now Assistant General Secretary of the union.

At the Matrix Chambers Employment Seminar yesterday in a discussion about the increase in interim relief cases in whistleblowing claims, James Laddie QC asked me why there were so few trade union activities claims.  My recollection was that I probably ran on average 1 case per year but was only successful in one other case in 30 years (ironically where I instructed Jeremy).  The common factor in both cases was the performance of my client in the witness box compared with the employer’s witnesses.  Such claims are very hard to prove to the satisfaction of the tribunal and even if you win the employer doesn’t have to reinstate.  The employer also gets 2 bites of the cherry to get their evidence right as to why trade union membership or activities played no part in the decision to dismiss, “anyone is free to join a union” and “some of their best friends are union members”.  Tactically interim relief is often not the best option.

These are but 2 examples from my personal experience that seem to bear out Jeremy’s words. There could be many more.  Of course when Jeremy wrote those words we were in a very different economic world.  The labour market was completely different.  Union density is now 25.6% with 6.5m members.  In 1979 it was over 50% with 13.1m members.  For many workers today, the protection of strong union membership with terms and conditions set by collective bargaining, is never going to happen.  The law is the only protection of minimum standards of fairness and dignity at work.  The reality for many workers is insecurity and exploitation, with pay below the minimum wage, zero hours contracts, casualisation and unsafe workplaces.

Matters will only get worse if the Tories are elected in May with a working majority.  We are promised further restrictions in strike ballots with new minimum thresholds.  Osborne hinted at Davos there would be further changes to facilitate labour mobility (no fault dismissals a la Beecroft?)

And now you have to pay for the privilege of enforcing your rights.  If Jeremy was writing “Rights At Work” today he would add a sentence.  “And you have to pay a £1200 tax to enforce your rights”.

Passing new laws is not necessarily the answer.  What is?  I await your comments.

There is to be a Jeremy McMullen Memorial Fund to support female candidates for the Bar through work-experience and marshalling.  Donations can be made here.

HHJ Jeremy McMullen QC 1948-2015, trade union official, barrister, judge, friend, neighbour and occasional cycle to work companion, you will be missed but the debate about Rights at Work will continue.

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August 5, 2014

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Beware of Douceurs

On the 30th July, the Unison website carried news of a successful tribunal claim against Bromley Council under the headline

“Tribunal orders council to compensate workers offered cash to sign away rights”.  

This got my interest.  I read on.

“Bromley Council has been ordered to pay more than £64,000 in compensation to 18 of its staff after an employment tribunal had offered cash incentives to sign new contracts that took them out of existing collective bargaining agreements.”

A frisson of deja vu.  Were these not the exact same facts as in Wilson & Palmer & others v Associated Newspapers & Associated British Ports, a case with which I was very familiar.  This had led to the European Court of Human Rights case of Wilson and Palmer and others v UK [2002] IRLR 568.  That in turn had led the then Labour government to pass a series of amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 including section 145B which provides;-

Inducements relating to collective bargaining

(1) A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if—

(a) acceptance of the offer, together with other workers’ acceptance of offers which the employer also makes to them, would have the prohibited result, and

(b) the employer’s sole or main purpose in making the offers is to achieve that result…

Unison kindly put a link to the decision at the end of the report. It is here:-

https://www.unison.org.uk/upload/sharepoint/Toweb/3683_001%5B2%5D.pdf

It makes very interesting reading.  Bromley made a series of concessions so the only issue for the tribunal was whether their sole or main purpose in making the offers was to achieve the prohibited result.  The prohibited result is defined thus:-

(2) The prohibited result is 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…

The tribunal had little difficulty in finding that Bromley’s purpose was prohibited as their own documentation and witness evidence confirmed that they intended to do away with the existing collective bargaining of terms of employment and to achieve this workers had to be induced to sign new contracts of employment where pay was not determined by collective bargaining.

Paragraph 54 of the decision is very revealing.

The Tribunal was surprised that neither the officers of the London Borough of Bromley, nor the officers of the unions involved, were aware of the provisions of section 145B of the Act during the course of the events described above.  Both parties may well have conducted themselves very differently had they been aware of these provisions…”

There is still a debate to be had as to the width of the term “purpose” in Section 145B.  On 7th March Eversheds published a briefing about Section 145B of the 1992 Act and a tribunal case in which they successfully acted called Wyer v Pembrokeshire County Council.    It is referred to in the Unison case.  http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/Education/Education_HR_e-briefing_572_Do_trade_unions_have_a_monopoly_position

They boast that the Council was able to adduce detailed witness and documentary evidence to persuade a tribunal to take a broader view of the Council’s “purpose” in seeking to implement a new pay and grading structure outside the collective bargaining process.  However they caution that on similar facts another tribunal  in a case called Whitaker v Buckinghamshire County Council, accepted the trade union submission that you take a narrow view of the “purpose” and once the employer seeks individual worker’s agreement to changes to terms and conditions outwith the collective agreement, then Section 145B engages.

In Unison case, Bromley had the additional hurdle of offering to workers a financial incentive (or “Douceur” as the Court of Appeal referred to them in the Wilson & Palmer case) to sign the new contract giving up the right to have their terms of employment determined by collective bargaining.

With the Government encouraging the breakup of national collective bargaining arrangements and the recent changes to TUPE referred to in a previous article on Hard Labour by Jim Wright

https://hardlabourblog.wordpress.com/category/tupe/

we can expect a lot more discussion about the intricacies of section 145B and the other provisions introduced following the ECtHR decision in Wilson & Palmer.

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Saving Private’s Jobs

Back when I was working at FRU, one of the potential volunteers asked me about whether FRU did Reserve Forces cases. I kind of muddled through because unfortunately at the time, I didn’t really know about them. For those few occasions when you’ve felt that an employee’s been treated so badly it ought to be criminal, you might have Parliament on your side. Unusually dismissing a reservist because he has been or might be called up is a criminal offence.

Reservists generally have the same employment rights as any other employee, and the THE has an excellent summary of some of the rights and obligations for employers of reservists. The Reserve Forces (Safeguard of Employment) Act 1985 is considered in that summary, but the act gives them some more and is almost certainly one of the least used pieces of employment protection legislation. In a recent Freedom of Information request, the MoJ confirmed that in the financial years from 2008-09 to 2012-13, there were 12 applications from reservists for reinstatement or compensation under the act and only 5 hearings were held.

The 1985 Act creates reinstatement committees and sets up statutory appeals from these committees to an umpire, apparently on law and fact. In practise the umpire will be the president of the EAT ex officio. Reinstatement committees can order employers to reinstate army restate reservists and/or pay compensation when the right to reinstatement conferred by the act has not been complied with. Failing to comply with an order of the reinstatement committee is also a criminal offence.

In summary, the rights conferred are:

  • The right to at least 26 weeks reinstatement to an occupation not less favourable to the reservist on terms not less favourable than they were originally employed on;
  • If for any reason it is not (or ceases to be) “reasonable and practicable” to continue a reservist’s employment, they are entitled to the “most favourable occupation” on “the most favourable terms and conditions” which are reasonable and practicable. In effect if there is other work they can do, they should be allowed to do it;

An employer can defeat these rights if more than 6 months pass from the end of a call up before they present themselves for work again. It can also be done if the reservist refuses to take up the job without reasonable cause, or if the reservist fails to notify the employer what they rely on as reasonable cause in writing (s1 (4)). There’s also some unusual limitation periods to bring claims. In practice most claims are likely to need to be brought within 13 weeks of an application (or renewal of an application) to be reinstated, although the somewhat different wording to most employment statutes causes some confusion if it is 13 weeks or the usual 13 weeks less one day.

There’s very little case law on the act. Since it came into force in 1985, I have been able to find only two appeals to Umpires from the reinstatement committees. Ironically, in both Slaven v Thermo Engineers Ltd UKEAT/0568/91  and James v Meterological Office UKEAT/1350/00 the president of the EAT thought the case before them was the first one brought to the umpire. James only really helps with the somewhat onerous requirement to renew applications to be reinstated in writing every 13 weeks in order to have the right to complain to the reinstatement committee. This leaves only a single case on the substantive law in Slaven which is somewhat limited in scope to not offering alternatives after a redundancy, although certainly helpful in setting out burdens of proof for the different stages in cases.

Presumably, an employer could show that it would be not reasonable and practicable to take a reservist back if they were dismissed for gross misconduct, it is as yet apparently untested whether the reinstatement committee would require actual proof or adopt the “honest and reasonable belief” test from unfair dismissal. My gut feeling tends towards the latter as it probably isn’t reasonable and practicable to take back an employee who the employer has justifiably lost all trust and confidence in.

It would require an employer with a somewhat unhealthy appetite for litigation to take a chance on any of the other traditional reasons for dismissal though given the lack of case law, especially with the priority given to reservists for other jobs even where a dismissal was not for redundancy. The phrase “reasonable and practicable” has an attractive sound to employment professionals used to dealing with ET claims out of time, but the “and” in the act as well as the judgment in Slaven suggests a disjunctive tests with an employer needing to get over both hurdles to win rather than a composite question of “reasonable practicability”.

You might not come across many reserve forces employees in your time advising clients, but if you do, this stuff is worth knowing. The additional protections available to them, along with the more severe penalties for employers who get it wrong in some situations are probably likely to help with settlements for claimant lawyers. For respondent advice, the lack of case law and there being no power to award costs is probably likely to make any reinstatement committee defence something of a nightmare, but hopefully forearmed is forewarned.