Court of Appeal Restricts Effectiveness of Trade Union Negotiation

In 2002 the European Court of Human Rights decided the case of Wilson v UK and found that UK trade union legislation was contrary the Article 11 of the  European Convention on Human Rights – in particular, at paragraph 48 of Wilson the ECHR found that

by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State has failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants.

The UK governments response to the judgement was to introduce new legislation in 2004 which is set out in sections 145A to 145F of the Trade Union and Labour Relations (Consolidated) Act 1992. 

Restrictions on Inducements to Union Members

Section 145B of the Act is the specific section that addresses the prohibition of inducements by an employer to its workers to have terms and conditions directly negotiated with the employer and worker independently of the trade union.

Section 145B introduces a right to individual trade union members of a trade union who is recognised by the employer for collective bargaining purposes (or by a union seeking to be recognised) not to be have a contractual offer be made directly to the worker would when accepted have what is called the ‘prohibited result’ and this result was the employer’s main or sole purpose when making the offer.

The section does however provide some limited circumstances, in section 145D.

The Basic Facts in Kostal

There has been very little caselaw on section 145B. As a union representative there has only been one time I have had occasion to consider it as a possible course of action. It’s prominence however rose with the decision of the EAT in 2017.

The basic facts in Kostal was that Unite was recognised by the employer for collective bargaining purposes and was negotiating with the employer about the pay award. The union and the employer did not reach an agreement but the offer went to a membership ballot and 80% of union members rejected the offer.

Disappointed with the outcome of the union ballot the employer decided that it would make precisely the same offer to each employee directly and that those who accepted, and those only, would receive not only the pay award but a Christmas bonus, those who refused would not.

In the new year the employer also wrote directly to every worker who refused the direct contract change offer and advised that that the employer was considering dismissing those workers who did not agree. The employer in making that offer made no reference to this being a dismissal and re-engagement on new terms dismissal.

The EAT and ET both found the purpose of the employer’s actions was to undermine collective bargaining. The Employment Tribunal itself commented that

it is not permissible for an employer to abandon collective negotiation when it does not like the result of a ballot, approach the employees individually with whom it strikes deals and then seek to show its commitment to collective bargaining by securing a collective agreement which is little more than window dressing – having destroyed the union’s mandate on the point in question in the meantime. In other words, if there is a Recognition Agreement which includes collective bargaining, the employer cannot drop in and out of the collective process as and when that suits its purpose.

Unfortunately, the effect of the Court of Appeal’s judgement in Kostal, independent of the issues in section 145D is that employer’s has been licence to do just that.

In the Court of Appeal the court (45) noted and appear to have accepted that the decision to make individual offers meant that it was “exceptionally improbable that the company did not intend to circumvent the collective bargaining process when it made the offers: in effect (eliminating the double negative) they found, and were entitled to find, that Kostal’s purpose was to circumvent the collective bargaining process.” And yet, even though none of the caveats to this right in section 145D applied, that this was in large part the issue in Wilson, accepted this description but still left open the question of whether the prohibited result was engaged. 

The prohibited reason is set out in 145B(2) and states that 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.”

One would think that the fact that by reason of the employer’s decision to avoid negotiating any change of contract on the yearly pay settlement with the union, even if they were willing to do so in the future if the union were more ‘compliant’ the “will not” provision would have been met. But the Court of Appeal had other ideas.

Court of Appeal

In it decision last week the Court of Appeal substantially restricted the circumstances in which a union member will be able to allege unlawful inducements to forego collective bargaining when an employer does not like the negotiating position a recognised trade union adopts to two situations in situations where it is not alleged that the employer is not motivated by express anti-union motives.

First, where a union seeks recognition but the employer makes an offer that would mean that their terms and conditions would not be subject to a collective bargaining unit.

Second, where the employer in making the offer intends to to permanently remove the term or condition from collective bargaining.

If inducement is not for one of these situations then the decision is not a prohibited reason, this would even apply where the employer is motivated by a desire to weaken the union’s bargaining position, as on the summary appears to be the motive of the employer in this case.

The rationale of the decision was that although the literal reading of the statute advanced by Unite was possible this cannot have been Parliament’s intention because that would give a veto over any changes and Parliament cannot have intended that. I am unpersuaded that is really the case on the issue of veto, why not? It is surely proper that in bilateral negotiations upon which agreement is necessary   that each party have a veto. And, besides which, as the initial tribunal noted it is not as though the employer is wholly without options, if the terms is truly necessary, it is open on an employer to serve notice on a dismissal and re-engagement basis which so long as the reason is a reasonable one (within the band of reasonable responses) it is unlikely attract compensatory liability to the employer.

Kostal is a dangerous and anti-union decision. It is not hard to see this will be abused and it is not as though there is a swell of tribunal claims on unlawful inducement grounds that the decision is quelling. Instead the Court of Appeal has given licence to employers to intermittent disavowal of collective bargaining to push through changes that are beneficial to the employers and against the interests of workers. This is acceptable so long as this disavowal and avoidance is ‘temporary.

And the Court’s refrain that this is all OK because the workers can always strike (leaving aside that new strike laws make that more and more a hypothetical right only) it is a strange argument that effectively encourages unions to undertake industrial action and increase industrial unrest.

It is certainly welcome that Unite have already announced that they have sought permission to appeal the decision to the Supreme Court. It may be that the case is also ripe for a further challenge, if necessary, to the ECHR on Article 11 grounds.

 

 

The Effective Date of Termination (Dismissal)

In order to make a valid unfair dismissal complaint an employee needs to begin the employment tribunal claims process (nearly always by starting the ACAS Early Conciliation process) within three months of their effective date of termination (EDT). Therefore, establishing what the EDT is among the primary duties of any union rep when advising whether a member has a good unfair dismissal claim.

With the harsh approach to time limits the employment tribunals apply with their “reasonably practicable” test the sad fact is that many many substantively good employment tribunals have been dismissed because of a miscalculation of an EDT.

The general rule is that an employee EDT is the date the dismissal is communicated to the employee. As I have discussed previously the Supreme Court in Gisda Cyf (2010) clarified that the EDT is effective only at the time when the notice of termination is either received and read by the employee or would reasonably have been read. This means that calculating the EDT can be more difficult (but helpful to employees) because the EDT is judged by more than just, for example, what date a letter was sent.

As a rule of thumb however it is always best in cases where a dismissal has been first communicated by post to err on the side of caution and calculate the EDT from the date of the letter, that way any claim will always be in time.

In the remainder of this post I want to offer some brief technical situations in addition to the issue of when a letter was read where the EDT may differ from a date calculated from a date a letter was sent.

First, and most commonly, if an employee is informed in a face to face meeting that they have been dismissed and that is followed up by a letter confirming this then the date that needs to be used is the date the employee was informed.

Second, if a union representative of the employee (or a solicitor acting for an employee) is informed of the dismissal before the employee and then informed the employee then it is this date, and not the date the employee is informed of the dismissal directly by the employer that should be used as the starting point for calculations. This principle was set down in the Employment Appeal Tribunal’s decision in Robinson v Bowskill & Ors [2013] UKEAT 0313_12_2011. In that case an employee was dismissed in her absence on 6 July and an email to the claimant’s solicitor was sent informing them of this that same day. The next day (7 July) the solicitor told the employee what the email said and the following day (8 July) the employee received a dismissal letter from her former employer. The case turned on whether the EDT was 6 July (the date the solicitor was informed), 7 July the date the solicitor informed the employee, or 8 July (the date the employer directly informed the employee). Applying the Gisda Cyf case referred to above the EAT decided the employee still needed to directly know of the dismissal but it did not matter that it was the solicitor whom had told her.

Third, where a letter is is a dismissal letter giving a period of notice then unless there is a clear contractual provision to the contrary then the notice period should begin on the day after the letter was sent, not the day of the letter. This was set out in the EAT decision in Wang v University Of Keele [2010] UKEAT 0223_10_0804. For example, if an employee receives and reads a letter dated 8 June 2019 giving him one moths notice then adding that one month would appear to give an EDT date of 8 July 2019.  However, applying the principle in Wang that the notice period starts the following day, namely 9 June 2019, means the actual date of dismissal would be one day later on 9 July 2019.

Finally, an employee is often dismissed and told not to attend work during the notice period. Here the question of when the EDT is will be very case specific. If the employee is dismissed immediately and is given a sum to pay for the sums she would have received during her notice period then the date should be calculated from the date of the dismissal decision. However, if the employee is simply asked to stay at home for the notice period then this is likely to still be pre-dismissal work and so the EDT will be the date that ends.

The most important advice on EDT remains as it was stated at the beginning of this post however. If the EDT is unclear it is best to assume the date is the earliest one possible.

The Right to Accompaniment and Unfair Dismissal

I have discussed the right of accompaniment on this blog before in the context of the worker’s right under section 10 of the Employment Relations Act 1999. One component of that right is an explicit right that if a worker’s chosen companion at a formal grievance of disciplinary meeting is unavailable then the worker can put forward another time and date within five working days of the meeting and the employer is normally required to accommodate that alternative time. If they do not then a worker could pursue a tribunal claim for that specific breach but also potentially that that failure also made the dismissal unfair.

In the context of this relatively common situation the decision of the Employment Appeal Tribunal in Talon Engineering Ltd v Smith [2018] IRLR 1104 EAT  offers a helpful clarification.

The relevant facts of the case were that the worker (Smith) was accused of misconduct and was invited to attend a disciplinary meeting. Mrs Smith wanted to be accompanied by her Unite representative and informed her employer of this. However, the union representative was unavailable for two weeks and suggested a three dates date for a meeting. This was not therefore a request for an adjournment under section 10 of the Employment Relations Act 1999 as the proposed date was more than five working days in the future.

The employer refused to defer the meeting until the rep was available and, because of that refusal, Mrs Smith refused to participate in the dismissal hearing. Mrs Smith was consequently summarily dismissed.

The EAT upheld the employment tribunal’s decision that the even though there had been no breach of Mrs Smith’s rights under section 10 of the Employment Rights Act 1999 it did not follow that the decision to refuse the adjournment request was fair for the purposes of the different unfair dismissal test in section 98(4) of the Employment Rights Act 1996. In the particular circumstances the refusal of the adjournment made the dismissal unfair.

Of course, this does not mean the employer must always agree to an adjournment if a rep is unavailable but it does show that the knee-jerk reaction of employers such as that displayed in Talon  to refuse any adjournment that does not meet the section 10 minimum requirements can run an employer into difficulties. Talon is a useful case for a rep to be aware of to equip them to  question such knee-jerk reactions.

Home Office in £1 Million Discrimination Payout

In 2017 the extremely important Supreme Court decision of Essop v Home Office was determined that clarified and to some extent, simplified indirect discrimination law for all UK workers. The issue in the case was it is alleged that the Home Office’s internal staff promotion policy place workers over the age of 35 and workers of non-white racial groupings at a material disadvantage.

Following the Supreme Court decision the case was remitted to the Employment Tribunal. PCS Union, which together with Prospect, brought the discrimination case has reported that that case has after over  seven years has settled whilst hearings were in progress for over £1 million:

Employment Tribunal claims were initiated against the Home Office, claiming indirect discrimination and arguing that the CSA was nothing more than an extra hurdle used to sift out BME and older workers.

The Home Office disputed these claims until the day before the Tribunal hearing, when it supplied a series of internal and confidential reports to Thompsons and the unions, one of which agreed that the CSA unjustifiably treated BME and older workers unfairly.

The Home Office then agreed part way through the Tribunal hearing to settle the claims, without admission of liability, and to pay the claimants compensation totalling more than £1 million.

Kate Lea from Thompsons Solicitors said: “While the settlement represents a fantastic result for each claimant and the union, it….defies belief that the Home Office knew of the internal findings yet decided to only disclose them the day before the tribunal hearing. The Home Office’s failure to cooperate until the very end caused an avoidable and costly legal battle – wasting time and taxpayer’s money.”

This is a fantastic result for PCS which follows the recent £3 million settlement the union obtained against DWP for breach of contract and an excellent example of why every civil servant should join PCS. 

The case is one in which I had some very minor involvement, involved enough so I know just how much work PCS other PCS reps and members put into not only running this case but getting the case off the ground in the first place – congratulations to everyone involved.

Pre-Cancer

Just over a year ago the Employment Appeal Tribunal issued its decision in Lofty v Hamis t/a First Café  and in its wake there was a lot of online discussions about whether precancerous conditions come within the deemed disability provisions of the Equality Act 2010.

Normally, in order to be a disability for the purposes of the Act a worker must show that the physical or mental impairment substantially affects their normal day to day activities and that it has or is likely to last for 12 months or more. However, the Act recognises three conditions, Cancer, HIV and Multiple Sclerosis, that are automatically a disability regardless of whether at that time the other elements of the disability definition are met.

From a worker representative’s point of view this this will mean that so long as the diagnosis can be demonstrated then the employer will have no basis for disputing disability and so the task of moving to the question of whether discrimination occurred or reasonable adjustments are required is less problematic.

The case of Lofty concerned  whether a precancerous condition came amounted to a cancer. In 2014 the claimant became aware of a skin blemish on her cheek. This was diagnosed as lentigo maligna. The advice of her medical practitioners variously descried this as precancerous lesion or a non malignant in situ cancer. In other words, the examination identified that there were cancer cells resent but this was not at the time at risk of spreading although they may  develop into a lesion malignant melanoma (a skin cancer). The Employment Tribunal that heard the case determined that since her condition is precancerous it was not yet cancer and so not a deemed disability.

It was this decision that was challenged in the EAT. In overturning the employment tribunal’s decision the EAT note that paragraph 6 of schedule one of the Equality Act (which lists cancer as a deemed disability) does not distinguish between invasive and noninvasive cancer. The fact that the claimant had cancer cells present was sufficient to mean this was cancer, regardless of whether oncologists referred to these as precancerous because they were not invasive.

However, a reading of the judgement makes the suggestions of many law firms headlines that precancerous conditions are deemed disabilities is false, there are many precancerous conditions and it is not clear all will satisfy the standard set out in Lofty. Nonetheless, I think it can confidently be stated that if there are cancer cells present then that person will be disabled under the Equality Act.

What does this mean for workers and representatives?

There are I think a couple of points worth commenting on.

First, where there are cancer cells present then the person will (at the relevant time) be disabled and so any sickness or performance issues associated with this such as sickness leave flowing from surgery are likely to require reasonable adjustments (for example, treating post operative convalescence as disability leave).

Second, while not every precancerous condition is cancer this is a difficult area relying on specialist reports of biopsies and similar reports and it is probably helpful to argue the point, as many employers will reasonably take a cautious approach and consider disability likely.

 

Can a temporary ailment be a Disability?

My broken wrist in a blue fiberglass castMary is a typist, a role she has done for many years. After over ten years with a company she took the plunge and joined a new employer four months ago because they offered a higher salary.

However, a few weeks after starting her role she had an unfortunate accident at home and she broke her hand after a construction materials fell onto it. She needs both a cast and physiotherapy to recover, but a full recovery is expected in 7 to 9 months. Until then while she is not able type she may be able to do some work .

Not unsurprisingly Mary’s new employers are sympathetic but since her role is as a typist are concerned they cannot accommodate her absence from work for up to nine months and are considering dismissing her from employment. Aware that apart from any discrimination or procedural errors a dismissal would be very unlikely to be unfair – let alone that as she has not been employed for the two years necessary to make a claim – Mary wants to argue that her hand injury is a disability as that will give her more grounds upon which to challenge her threatened dismissal.

Disability

Disability is a protected characteristic under the Equality Act 2010 and so, if Mary’s hand injury were  disability, Mary would have a right of redress against a dismissal (although that is not to say she would win a claim).

The UK Law is itself based on EU Law, specifically Council Directive 2000/78/EC . Although not defined the European Court of Justice (ECJ) in the case of Chacón Navas  explained that disability amounts to

“a long-term limitation which results in particular from physical, mental or psychological impairments and hinders the participation of the person concerned in professional life.”

Clearly, an inability to type is a normal day to day activity but is also central to Mary’s professional so if this is a ‘long term limitation’ Mary can be disabled. So what does long term mean? Schedule 1 Part 1 of the Equality Act 2010 defines a long term impairment as one that is “likely to last for at least 12 months.”

The UK Government’s Equality Act Guidance on the meaning of disability explains ‘likely’ “should be interpreted as meaning that it could well happen.” So, Mary’s prospects of suggesting that she is disabled in the acct will depend on whether an employment tribunal found that her hand condition ‘could well’ be an impairment that lasted for twelve months or more. Given that the evidence is that it will last for just 7-9 months it does not look like Mary’s prospects of establishing she is disabled are very good.

However, as a union representative I would, faced with this situation make sure that the employer is forced to make a decision that the individual is not disabled by setting out the view that a condition could well continue to effect the employee for more than twelve months and that the employee is disabled with the corresponding obligations that that places on an employer. This is because good employers will as a matter of best practice give the benefit of the doubt to an employee if there is uncertainty and, even if the employer does refuse to accept this then this can be used as a basis of future challenge.

Temporary Incapacity can be a disability

However, it seems to me that the 12 month period of impairment may well be suspect. In Daouidi v Bootes Plus SL, which was a preliminary reference from the Spanish national courts, the CJEU considered whether in a situation similar to Mary’s a person could be disabled because of a temporary incapacity and decided that she might be.

The claimant, Mr Daouidi, had recently started working for a restaurant (Bootes Plus SL) when he had an slipped at work and dislocated his elbow, this accident prevented him from working. Mr Daouidi was absent from work. Approximately 7 weeks after the accident Mr Daouidi was still absent from work and because there was no clear information about when he would recover Mr Daoudi was dismissed from his employment and he challenged the dismissal in Spanish courts, with one of his grounds being that he was disabled even though he was expected to recover within an indeterminate timescale.

Some six months later when appearing before the Spanish judges Mr Daouidi still had his arm in a sling and the judges wondered whether this could amount to  long term condition. As the EU court often does in preliminary ruling the court did not decide the case so we do not know whether Mr Daouidi was found to be a disabled person.

However, two things are of note in the judgement. First, the fact that a condition is temporary or in the nature of an accident (such as a dislocated shoulder) does not itself mean the condition cannot be a disability.

Second, it remains the case that the term “long term” remains undefined but the court did not demur that an injury that lasts 6 months and interferes with professional life could not constitute a long term condition (even though they did not state it was). The court also observed that

According to settled case-law, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union … In the absence of such an express reference to the law of the Member States, the concept of a ‘long-term’ limitation of a person’s capacity, within the meaning of the concept of ‘disability’ referred to by Directive 2000/78, must therefore be given an autonomous and uniform interpretation.

In short, “long term” should normally be given a uniform interpretation so that, for example, long term should mean the same in the UK (while the UK remains subject to the EU that is) as in Ireland, Spain, France etc. Interestingly, it appears that after the CJEU the Spanish Courts did in fact find that Mr Daouidi was disabled because of a long term injury even though on the test in the Equality Act 2010 he would have been unlikely to have met the definition of long term this set out.

The UK legislation that defines “long term” as likely to last 12 months or more has the advantage of certainty but it seems to me it is not an inviolable requirement and a person such as Mary may be a disabled person under Directive 2000/78 even though they may not under national law that was enacted to implement the directive.

So, would Mary be disabled? Possibly.

 

 

Unfair Dismissal because of Subject Access Request failure

The Data Protection Act 1998 allows any person to request a copy of the personal information an organisation holds on them, this includes a request from an employee to their employer. Making such a request is termed a ‘subject access request’. Once an employer receives such a request they must – subject to a few exemption the legislation – supply the information within 40 days of receiving the request. This right is due to be strengthened in May 2018 when The General Data Protection Regulation 2016/679 is implemented into UK law (which I hope to do a separate post on). 

Subject Access Requests can be a useful tool in an employee’s arsenal when they are undergoing formal disciplinary or grievance proceedings and it is one I often recommend an employee makes – sometimes the outcomes can reveal strong grounds of appeal. For example, in one case I have seen evidence of a senior manager has instructed a disciplinary investigator on what outcome  her investigation must reach before the investigation had even begun. In another a manager committed in writing to another manager that contrary to the stated reasons to the employee the actual reason he was not making reasonable adjustments for an employees disability was because he planned to dismiss her, he was just waiting for an opportunity to do so.

Needless to say having such information in one’s hands in the course of a disciplinary process can be advantageous. In the first case because of management delays an employee’s warning was overturned on appeal as the information was received before the appeal hearing while in the second a disability discrimination complaint before the ET was fairly quickly settled. One of the difficulties with subject access requests however is the time allowed to respond, by the time the 40 days have elapsed many disciplinary and appeal processes have run their course (under the GDPR things will be a little better as the response time is 30 days), meaning if there is a ‘smoking gun’ it will be useless except as material for a employment tribunal claim(if the employee has the right to make such a claim).

This brings us the unfair dismissal case of McWilliams v Citibank (2017) a first tier decision. The facts of the case can be briefly stated. Ms McWilliams had been an employee for many year, she regularly communicated with other traders, including outside of the company, and involved sharing confidential matters. Citibank initiated a disciplinary investigation against Ms McWilliams.

In order to prepare a defence Ms McWilliams, while suspended and therefore unable to access her own records, submitted a subject access request which the employer refused to provide because it was disproportionate. She then submitted a narrowed down request  explaining this was necessary for her disciplinary case. Citibank again did not supply the information (and Ms McWilliams complained to the ICO – the data protection regulator). The employer refused to adjourn the disciplinary hearing and Ms McWilliams was dismissed.

At the tribunal a finding of unfair dismissal was reached on the specific basis that the employer’s treatment of the subject access request – which was a request for disclosure of information to enable Ms McWilliams to answer the charges against her – and the convening of a disciplinary hearing without that disclosure made the dismissal process procedurally unfair.

At root it was not the fact that a subject access request had been refused that made the dismissal unfair per se, it was that the employer had deprived the employee of a realistic prospect of presenting a defence to the allegations against her (a defence that it was subsequently established was supported by the FCA – that the conduct was conduct alleged was condoned by senior managers). Therefore, this case certainly does not mean that if a subject access request is refused or not complied with at the date of a disciplinary hearing the proceedings are unfair (but that is not to say I would not at least raise the issue) but the case is a helpful one and where there is a direct relevance of the subject access request – in this case her suspension made this more crucial – this is an issue that employees can raise in the course of proceedings.