Category Archives: Trade Unions

The Right to Strike

The Court of Appeal decision – National Union of Rail, Maritime and Transport Workers v Serco Ltd and another

On Friday afternoon last week the Court of Appeal handed down the eagerly anticipated decision of National Union of Rail, Maritime and Transport Workers v Serco Ltd (and another); which considered, among other things, the unions’ duty to maintain accurate membership data, and suggests (albeit obiter) that the ‘de minimis’ rule can apply to excuse failures not covered by S.232B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A).

 In this far-reaching judgment Lord Justice Elias rejected the argument that the legislation should be construed strictly against unions because they are seeking to take advantage of immunity.

I am often asked to give media comments on the right to strike, and from where this right originated. Lord Justice Elias gave an excellent précis of the legal position regarding strike action in the UK in his judgment, extracts of which I set out below:

“The common law confers no right to strike in this country.  Workers who take strike action will usually be acting in breach of their contracts of employment.  Those who organise the strike will typically be liable for inducing a breach of contract, and sometimes other economic torts are committed during the course of a strike.  Without some protection from these potential liabilities, virtually all industrial action would be unlawful Accordingly, ever since the Trade Disputes Act 1906 legislation has been in place to confer immunities on the organisers of strikes from certain tort liabilities provided, to put it broadly, that the purpose of the action is to advance an industrial rather than a political objective.  This is achieved by a requirement that the industrial action must be “in contemplation or furtherance of a trade dispute”. The current protection is afforded by section 219 of the 1992 Act (ie TULCRA).  The legislation therefore secures a freedom rather than conferring a right as such”

“There is no legal obligation to hold the ballot as such and a strike is not automatically illegal for that failure alone. However, virtually all strikes involve the workers taking strike action acting in breach of their contracts of employment.  Accordingly, if a ballot is not held, or if it is held but in breach of the legislation, then the immunities are inapplicable and in practice the union will be liable in tort for inducing their members to strike in breach of their contracts of employment.  Although the common law recognises no right to strike, there are various international instruments that do: see for example Article 6 of the Council of Europe’s Social Charter and ILO Conventions 98 and 151”

The Court of Appeal held that:

  • The S.232B accidental failures defence does not require the errors to be unavoidable. However, if a union knows, or must have known, that it was in error it will not be able to rely on the exception;
  • When assessing whether a union has complied with the S.226A(2D) duty to provide the employer with information that is ‘as accurate as is reasonably practicable’ about the numbers and categories of concerned employees, the focus is on the information the union has at the time it notifies the employer, not information it ought to have or which it could obtain;
  • Obiter – the ‘de minimis’ defence continues to apply to ‘trifling errors’ where there is no express statutory defence (ref to British Railways Board v National Union of Railwaymen);
  • A sufficient explanation of the figures provided to the employer under S.226A is one that complies with paragraph 16 of the Code of Practice ‘Industrial Action Ballots and Notice to Employers’, issued in 2005;

This requires unions to describe the sources of their data and states that it is desirable to describe any known deficiencies. In order for an explanation under S.226A to be inaccurate, the description of the process by which the figures were arrived at would need to be ‘positively and materially misleading’;

  • It does not matter if the S.226A explanation is formulaic. If the union obtains the necessary information for each strike in the same way, the description of what it has done will be essentially the same.

Philip Henson, Partner and head of employment law @ Bargate Murray says: “With threats of further industrial action on the horizon, and fears of a Spring of discontent, there may well be efforts for a further appeal to the Supreme Court”.


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Far reaching changes to Employment Tribunals are imminent

Far reaching changes to Employment Tribunals are imminent

The launch of the “resolving workplace disputes” consultation by the Department for Business,  Innovation and Skills (BIS) is described as being the next step in the Governments comprehensive review of employment laws. In reality the consultation sketches out a roadmap to fundamentally change the current tribunal system into a more business friendly model.

Proposals include: charging fees; increasing the cap on costs awards; increasing the level of deposit awards; and removing payments for the expenses of witness. These proposals will not go down well with Claimants and Unions alike; who will no doubt view them as putting barriers in the way of access to justice.

Some of the wide-ranging consultation proposals will be welcomed with open arms, including:

  • Encouraging parties to resolve disputes earlier (through ACAS, and implicitly through mediation);
  • Making strike out powers more flexible, with “procedural safeguards to be built-in;
  • Allowing Employment Judges to be able to issue a deposit order at any stage in the proceedings;
  • Introducing a mandatory requirement for claimants to provide a statement of loss in the ET1; and,
  • Shortening tribunal hearings by taking witness statements as read.

 The more controversial aspects of the consultation include:

  •  Introducing “fee charging mechanisms”. This is not set out in any detail however, the consultation includes the example of “where claimants lodge claims (and respondents choose to counter-claim), and/or for parties in claims that proceed to full hearing”. It does not seem to be envisaged that any fee will be charged when a Respondent submits its ET3.
  • Extending the qualifying period for unfair dismissal claims from the current one year to two years. The Government estimates that this will reduce the level of claims by 3,700 – 4,700 a year.
  • Introducing Legal Officers to deal with case management. The consultation seeks views on the “qualifications, skills, competences and experience we should seek in a legal officer”. 

 Lawyers and HR practitioners should note that the consultation also seeks views on the type of interlocutory work (which the consultation considers “could be undertaken by any competent person”) that might be delegated, so clearly this proposal will be expanded.  Under the proposal Legal Officers could be: experienced administrative officers; qualified lawyers employed as registrars or legal assistants; or a ‘junior’ rank of judge or judicial officer.

  • Introducing a rule whereby either party can make a formal settlement offer to the other party, or parties, as part of formal employment tribunal proceedings, “backed by a scheme of penalties and rewards”. The consultation proposes a system similar to the “Scottish Courts’ judicial tender model” (see how many English practitioners put that search term into Google!), and not a Part 36 model.
  • Removing payment of witness expenses. The Governments argument is that this will lead to a reduction in the duration of some hearings, as “only witnesses that are strictly necessary will be called”. Surely it is simply intended to save Government money. It is unlikely to be the main consideration for witnesses I would suggest that a greater deterrent to witnesses attending a tribunal hearing would be the necessity to take time off work to give their evidence.
  • Increasing the current cap on the level of costs that may be awarded from £10,000 to £20,000. The consultation emphasises that “it is not our intention to move towards a general costs-recovery policy”.
  • Reviewing the formula for calculating employment tribunal awards and statutory redundancy payment limits.
  • Increasing the current level of the deposit which may be ordered from the current maximum of £500 to £1000.
  • Extending the jurisdictions where judges can sit alone, allowing “more efficient use of lay member resource” – (it is noteworthy that this is not defined).  Subject to discretion, unfair dismissal cases to normally be heard by an employment judge sitting alone.

This may lead to a two tier level of tribunal judges, and does little to address the reality that many unfair dismissal claims often feature as just one strand of several claims. The annual statistics published by Tribunal Service show that for 2009-10 the average number of jurisdictional complaints per claim was 1.7. Could this be the beginning of the end for lay members?

  • Proposing that claimants submit key details of their dispute (using what will amount to a shortened version of the ET1 claim form) to ACAS within the relevant time limit.

It is proposed that ACAS will have no role in determining whether the claim is in time or not; they will, however, date-stamp the form on receipt, and that will then allow the Tribunal to decide whether to accept or reject the claim.  This dual process is likely to confuse many businesses.

The consultation envisages that the clock (for the relevant time limit) will stop once the claim is received by ACAS and that there will then be a statutory period of time (they propose 1 calendar month) for ACAS to attempt to conciliate the dispute.

Resolving disputes

The amount of claims lodged at the Employment Tribunal for the period 1 April 2009 – 31 March 2010 show that there has been a 56% increase in claims from 151,000 for the period 2008/2009 to 236,100 claims in 2009/2010; although it should be noted that those figures include multiple claims.

The role of ACAS

The aspiration in the consultation to urge employers and employees to work together to resolve workplace disagreements should be welcomed. Work place mediation will most likely be an area of real growth. The role of ACAS should rightly be heralded as a successful way of resolving disputes, as 70,600 claims were ACAS conciliated last year. 

The Government intends to give all potential claimants with access to pre-claim conciliation by ACAS – free of charge to all those who want it; and for ACAS to give claimants with information about what they can expect from a Tribunal, including the time involved and what a tribunal might award.

The key issue will be whether ACAS has adequate resources to deal with a likely surge in demand. Perhaps the proposed tribunal fees will pay for the service to be expanded? In my own busy employment practice it is increasingly clear to me that ACAS case workers have an almost insurmountable level of cases to deal with.

Philip Henson. Partner, Bargate Murray, and accredited mediator specialising in work place mediation.

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Malone & Others v BA Plc – crew complements dispute

Malone & Others v BA Plc

The Court of Appeal has recently found in favour of BA Plc (“BA”) in the crew complements dispute.

Miss Elizabeth Anne Malone was selected as one of three lead claimants’ on behalf of 5000+ claimants’, all cabin crew workers from Heathrow, who brought breach of contract claims against BA -hence the Malone title.

Those claims were considered in the High Court by Sir Christopher Holland in February this year. The claimants’ argued that BA’s decision to unilaterally reduce the crew complements on its aircraft in October 2009, below the levels which had been agreed through collective bargaining between the employer and the employees’ trade union (Unite), amounted to a breach of contract. They sought declarations as to their contractual terms, injunctions requiring BA to comply with the crew complement levels in operation before the unilateral reduction, damages and costs.

The claimants’ alleged that the collective agreement which stipulated crew complement levels had been incorporated into their individual contracts of employment and was enforceable by them on an individual basis. BA argued that, even though some collective agreements negotiated between it and Unite were incorporated into the employees contracts of employment, the particular provisions relating to crew complements were not; and that these terms were not intended to be included in the individual contracts (“the incorporation issue”). BA raised an alternative defence that the employment contracts of about 60% of the claimants’ contained a clause which entitled BA to make reasonable changes to the terms, and in light of the company’s “parlous financial position”, the reductions in crew complements were reasonable changes which could be made unilaterally (“the reasonable changes issue”). The High Court accepted the submissions of BA and dismissed the claims. Malone, and others, then appealed that decision.

In the Court of Appeal Lady Justice Smith opined that the relationship between BA and the trade union branches’ representing the cabin crews was, “rather unusual”; and that issues which might usually be regarded as falling within the sphere of management are the subject of bilateral negotiation resulting in collective agreements.

It was noted that there are several collective agreements between BA and the trade unions which cover almost every aspect of the cabin crew working terms and conditions; although none of those collective agreements was enforceable between BA and the trade union as in none of them is there any express intention recorded that the agreement should be enforceable – which is a requirement of section 179 of the Trade Union and Labour Relations (Consolidation) Act (“TULCRA”) 1992.

Lady Justice Smith emphasised that it had been difficult to decide the aptness of the incorporation of the crew agreements, and that the various relevant considerations “point in both directions”, for and against incorporation; and that even within the same section of the agreements there are enforceable and unenforceable provisions within the same section.

BA’s QC argued that if section 7.1 of the Worldwide Scheduling Agreement (WSA) were to be individually enforceable, individual crew members could, with impunity, refuse to fly with a reduced crew complement which, as Lady Justice Smith noted, would have “disastrous consequences” for BA if the term were to be individually enforceable – described as being “so serious as to be unthinkable”.

However, Lady Justice Smith did not share Sir Christopher Holland’s view (obiter) that even if he had found that section 7.1 was individually enforceable he would not have granted injunctions requiring BA to reinstate their former cabin crew complements; commenting that the main issue (when considering whether there should be a permanent injunction after a full hearing) is whether damages would be an adequate remedy for the claimants; and it was clear that damages would not be an adequate remedy for the claimants’ in this case. However, this was hypothetical as it was found that there was no breach.

 Dismissing the appeal Lady Justice Smith held that the true construction was intended as an undertaking by the employer towards its cabin crew employees collectively, intended to be binding “only in honour”.

The Malone case reiterates the need for clear drafting of collective agreements (and perhaps negotiator training), specifically the status of those agreements; and highlights the up hill struggle which trade unions will face when trying to argue that provisions of collective agreements are suitable for individual incorporation into employment contracts.

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BAA/Unite discussions and the need for further dialogue

In September I was interviewed on Sky News commenting on the discussions between BAA and Unite the Union, which took place under the auspices of ACAS at an undisclosed location.

 Many critics have opined that Unite may be taking a more militarist view on strike action, and have questioned if they are prepared to threaten strike action that could have resulted in the closure of six airports over a 1 % (or 1.5% depending on who you speak to) pay increase what will they do when the cuts to the public sector are ushered in later this year?

 Was the strike threat (and notably the reluctance to confirm whether any strike action would fall over the August bank holiday weekend) perhaps part of a sophisticated strategy to demonstrate that they are a force to be reckoned with as the sword of Damocles starts to hover over the public sector?  I am curious whether the strike threat was a sign that the biggest Union in the UK and Ireland was dipping it’s toe into the sea of unrest to test the waters for further industrial action.

 We should also question in what circumstances the public will support future industrial action. I would suggest that the majority would support Union members who propose to strike over fears about their working conditions and public safety, such as the action proposed by the RMT Transport Union over conditions on the London underground. In contrast the battle for hearts and minds may be difficult to win over a pay increase (no matter how small); especially if hardworking families who have waited to find last minute holiday deals discover that their travel plans may be hampered.  It is imperative that we recognise the categories of staff who were balloted for the industrial action. We are talking about security staff, engineers, fire-fighters and support staff at BAA’s six airports, and these important workers are integral to the aviation industry, specifically in relation to security, and they should be listened to. 

 In my view we have to be careful not to venture into the realms of Union bashing, as the Unions carry out an important role, particularly by publicizing important issues which affect their members. For example, Unite are currently promoting a campaign to try and prevent baggage handlers in the aviation industry suffering from muscular skeletal injuries, and the RMT Union are raising awareness of safety concerns on the Tube tracks.

 For further comments on this issue please follow this link to my article published on

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ACAS/TUC mediation guide for Trade Union representatives

On an almost weekly basis we hear the foreboding news that cuts to the public sector will bring co-ordinated industrial action and civil unrest.

However, it’s not all doom and gloom as a recent joint announcement by ACAS, the employment relations service, and the TUC espouses the virtues of mediation, and may point towards a new approach to resolving disputes by the union movement. 

ACAS and the TUC have published a new 18 page guide[1] for trade union representatives which explains how mediation can compliment their role in helping to avoid costly disputes.  The introduction points out that whilst not offered as a panacea mediation can offer a way to avoid the potentially disruptive effects of drawn out conflict.

The new guide explains:

  • What happens during a mediation,
  • The role of representatives in a mediation and how to support members,
  • How to work with employers to set up mediation arrangements,
  • How mediation fits with other workplace procedures and agreements, and, 
  • How Trade Union representatives can act as mediators.

A culture change?

The Chair of ACAS, Ed Sweeney, noted the change in direction, when he opined: “In the past there has been some reluctance to use mediation within the union movement as it was seen as a possible barrier to justice. Despite some apprehension, we are increasingly seeing evidence of trade unions recognising the benefits it can bring to their members.”

Philip Henson, comments:

Whilst I am pleased that the virtues of mediation are being promoted by the TUC and ACAS, unfortunately the new guidance sends some mixed messages. The comment that “it [mediation] can also be used to rebuild relations after a member of staff has been through a disciplinary or grievance process”, points towards mediation being seen as a tool for reconciliation after each disciplinary or grievance process. Whilst in a Utopian world that might be an ideal way to restore the relationship between the parties, mediation should not be an automatic add on to the end of the existing grievance and discipline procedures (as can be inferred) as such a proposal would bring an unjustifiable amount of pressure on management time and resources; particularly for any SME’s who do not have a dedicated HR function.

I also find it difficult to reconcile the declaration that mediation can be used “at any point in the conflict cycle”, with the comment later in the guidance that “it [mediation] should only be used where agreed procedures have been exhausted or the parties agreed to put them in abeyance”, which appears to indicate that mediation might be seen as a process of last resort.

Furthermore the declaration that mediation is “morally binding and has no legal status (unless the parties so desire)”, does not clearly explain the benefits of setting out the fruits of the labour of the mediation in an agreement between the parties.

The section “can trade union representatives be mediators?” promotes the skills of trade union representatives to employers who are looking to recruit internal mediators. It continues that where trade union representatives do act as mediators they should “avoid mediating for individuals who they also represent”.  In fact what they should clearly be stating here is that if you are a mediator and you are asked to mediate in a dispute involving an individual that you already represent then you will not be able to act as a mediator as there will be a clear conflict of interest.

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