10 October 2013

By Roger Jeary

Roger Jeary, a delegate at the Institute of Employment Rights' Employment Law Update conference, describes the views and lessons of the UK's leading lawyers and trade union officials speaking at the event.

October each year, governments implement changes to employment legislation, so this week was an appropriate time for the Institute to discuss the many changes that have occurred over the last 12 months. The day's theme was clearly one of fighting back, and despite the gloomy prospects for workers' rights there was much to learn about how some of the changes increasing workers' vulnerability can be challenged or used to our advantage.

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1. The political landscape - Professor Keith Ewing
2. Access to Justice – Only for the Rich? - Paul Statham
3. Developments in discrimination law - Deshpal Panesar
4. The past, present and future of collective consultation - Damian Brown QC
5. Confidential conversations, settlement agreements and early conciliation - Simon Cheetham
6. The meaning of "establishment" in mass redundancy - Bruce Robin
7. How best to tackle the attack on employment rights - Sarah Veale

The political landscape – Professor Keith Ewing

Conference was opened by Chair Sonia McKay from the Working Lives Research Institute, who introduced the first speaker Professor Keith Ewing, President of the Institute of Employment Rights.

Keith began by discussing this years' employment law changes in a political context, referring to the recent party conference season and the relevance of a Labour election campaign based on living standards to the issue of employment rights.

He recommended that Coalition proposals to cut facility time within the civil service should be challenged in court, including the human rights court. The Professor noted that anti-trade union laws had already been successfully challenged in the High Court in the case of plans to remove check-off facilities in the Department of Communities & Local Government and other areas of the public sector. The Court judged that such a move would amount to a breach of contract.

Prior to the Conservative Party Conference this year, media reports detailed Tory proposals for further anti-trade union laws if they are re-elected, all of which stem from the agenda of a backbench group of Tory MPs. These changes would include:

• Trade unions to pay full commercial rent for property/offices provided by the employer;
• An end to the right to free time off for trade union duties, including for so-called "pilgrims", who work for trade unions in the public sector and receive state wages;
• A ban on check-off;
• An increase to the threshold before a union can apply for statutory recognition from 10% to 30%;
• A requirement for strike ballots to achieve a positive result from 40% of those eligible to vote in order to be successful;
• The abolition of the union learning fund.

Keith explained that the reprehensible use of the word "pilgrim" refers to a Unison full-time secondee called Jane Pilgrim, who was attacked in the press as a drain on taxpayers' money in 2011 as part of a campaign against trade union reps being paid for carrying out their duties in the public sector.

Turning to Labour, Keith said none of Ed Miliband's four promises at the TUC this year were revolutionary. These included: the enforcement of the minimum wage; the encouragement of the living wage (which is far from an obligation to pay the living wage); and a commitment that some kind work is guaranteed on zero-hours contracts. However, at the Labour Party Conference the party revealed itself to be against the race to the bottom (i.e. lower wages, poor terms and conditions and poor rights at work); and emphasised the need to raise wages, for example by building up the National Minimum Wage at a sectoral level.

Labour still has many questions to answer before the election, Keith reminded delegates. What are their policies on employment status; zero-hours contracts; unfair dismissal changes; redundancy consultation periods; tribunal fees; blacklisting; attacks on facilities for trade unions; and collective bargaining?

Access to Justice – Only for the Rich? - Paul Statham

Next, Paul Statham from Pattinson & Brewer addressed the financial changes introduced by the government for those seeking redress through the tribunal system. He began by welcoming the news that government is now committed to the introduction of fines for employers who breach employee rights, but other proposals have limited the ability of low-income workers to access justice.

The complexity of the fees system, introduced on 29th July this year, was highlighted by Paul in his summary of the new legislation, as he demonstrated the injustice of the new arrangements. He went on to explain how trade unions can fight back against the fees, including by insisting that trade union members have their fees loaned to them by their union in order to emphasise to employers that the charges would not hold back workers from seeking redress and reimbursement would be sought if the claim was successful. He also advocated claiming for costs and remission if the claimant qualifies. Paul went on to identify ways in which lawyers could challenge employers on the lack of reasonableness, drawing from the new tribunal regulations on procedures.

There are two outstanding legal challenges to the fees in Scotland and in England. The case in England is being pursued by Unison and is due to be heard later this month. The Lord Chancellor has made three concessions arising from the Scottish preliminary hearing: only one fee will be payable in multiple appeals; preliminary hearings will not attract a fee, and equal pay claims will fall within Type A, thus attracting a lower fee.

Paul went on to highlight how other Coalition employment law changes can be countered, including witness expenses, collective redundancy consultation periods, caps on awards, settlement agreements, changes to the Equality Act 2010 and early conciliation. However, he argued that early conciliation is not always a bad thing, as if an employer refuses to engage with a grievance referred to ACAS then a without prejudice letter save costs can be sent to them and subsequently produced at a tribunal in support of a claim for costs.

During a lively question and answer session, Paul also clarified that the ACAS code recommends a trade union representative is present at protected conversations. Although the content of these discussions cannot be used as evidence in a tribunal, he advised that it is useful to have some form of account recorded or a witness present.

Developments in discrimination law - Deshpal Panesar

Solicitor Deshpal Panesar of Old Square Chambers explained that government changes to equality law are founded on the misplaced belief that equality legislation is a burden on business. He pointed to statistics showing the business community do not share this view. In fact, it is in no way the perception of the majority, with 71% of respondents to a government consultation opposing the removal employers' liability for third party harassment (which came into law anyway on October 01 2013).

Elsewhere, the questionnaire procedure has been repealed, restricting the emergence of evidence in advance of a tribunal case. Deshpal argued this would have been better dealt with by moderation rather than repeal. On the removal of the power of tribunals to recommend wider changes affecting the workforce as a whole, he pointed to the fact that a tribunal is surely best placed to make such recommendations and this cannot be seen as a "burden" as the government has proposed.

In addressing the 'caste' discrimination possibility, Deshpal welcomed consultation scheduled for next year. Caste discrimination is a wide term covering various religions and cultures.

A recent statement on the review of the Public Sector Equality Duty said it is too early to make a decision, but Deshpal noted that the writing is on the wall. The sum of these legal changes is an indication that the approach of the Coalition is based on the surmise that Regulation is inherently bad. A sign of what could happen if Tory government elected in the future.

However, not all developments in discrimination law have been negative. Changes to the Companies Act 2006 Regulations 2013 and reforms in the EU regarding the composition of boards are helping to tackle the glass ceiling. There are proposals for publicly listed companies in Europe to be required to introduce new selection procedures to meet the new objective of 40% of women on boards. This, Deshpal told conference, is still subject to ratification by the EU Parliament and is limited to non-Executive board members; companies with more than 250 employees; and with a turnover of 50m Euros or more. The Capital Requirements Directive also requires a nominating body which takes account of under-represented gender in the management body.

Another development welcomed by Deshpal is the new powers given to Employment Tribunals to order businesses to carry out equal pay audits.

The past, present and future of collective consultation - Damian Brown QC

Damian Brown QC of Littleton Chambers presented a synopsis of the changes to collective consultation looking at not just the past and present, but also providing an insight into the future. Damian reminded the Conference that the original Directive and legislation was about protection for workers. However, the Coalition government's approach and emphasis is instead on management having control over change.

The trigger for consultation is when 20 or more employees at one establishment are affected by redundancy. Consultation, he reminded us, has to include the reason for the redundancies and the numbers and descriptions of employees affected; the total number of employees that are planned to be redundant; the method of selection; the method of carrying out the redundancies; and the method of calculating any non-statutory payments. All of this needs to be put in writing to employee representatives. In addition, this year, details of agency workers and how they are affected has to be included in the information.

Damian emphasised that the purpose of consultation is to find ways of avoiding dismissals, reducing the number of redundancies and mitigating the consequences. Unions cannot use this as an exercise for obtaining confidential information from the company. In referring to the UK Coal v NUM (2008) case, Damian pointed to the need for employers to look at the business reasons for closure and not to give incorrect reasons on HR1.

The reduction to 45 days of consultation for redundancies of 100 employees or more, and 30 days for those with workforces between 20 and 99, is important in determining when consultation should commence. This now means that the contemplation of a plan rather than simply the contemplation of redundancies will be the trigger for consultation. On the issue of protective awards, Damian pointed to the rules that allow later claims from non-union members. He emphasised that legislation allows for punitive compensation and that claims should start with the maximum, as it is unlikely that once a tribunal has determined the level this would be overturned on appeal.

He went on to discuss the new ACAS guide on collective redundancy consultation, which he described as anodyne. It has no statutory force, but it contains a ten-point checklist, which can be referred to in tribunal if one of these steps is omitted by the employer. The meaning of establishment is covered, but treats each particular workplace where the redundancies take place as the establishment. This interpretation has been overturned by the recent Woolworth's case, but this is now subject to appeal. For most employers, the content of the guide simply states the obvious.

Confidential conversations, settlement agreements and early conciliation - Simon Cheetham

The afternoon sessions kicked off with a wide-ranging presentation from Simon Cheetham of Old Square Chambers, which looked in more detail at the issues of confidential conversations, settlement agreements and early conciliation.

Simon began by discussing confidential conversations, which allow for employers to engage in pre-termination discussions that cannot be used in evidence at subsequent tribunal proceedings for unfair dismissal. However, he pointed out that the rule only applies to straightforward unfair dismissal proceedings and not to automatically unfair dismissal or claims which cover other rights such as whistleblowing or discrimination. Neither does the protection apply where there has been improper conduct. The ACAS code of practice suggests that harassment, bullying and intimidation along with physical assault, victimisation and discrimination are examples of improper conduct, along with applying undue pressure on a party. This is defined as not giving reasonable time for consideration, or threatening dismissal procedures if proposals are rejected. Since July this year, these provisions are valid even if a dispute is not already in progress.

Moving on to Settlement Agreements (previously compromise agreements), Simon described the new rules as an entirely cosmetic and unnecessary change. The ACAS code on these agreements, he warned, is voluntary.

Early conciliation is still to be implemented and Simon, on balance, described the process as a good thing. It will be mandatory to go to ACAS, but it will be voluntary as far as participation in conciliation is concerned. Contacting ACAS will "stop the clock" on the claimant's limitation period for submission of any claim.

The meaning of "establishment" in mass redundancy - Bruce Robin

Bruce Robin of Thompsons Solicitors discussed how best to challenge employers on the issue of defining an "establishment" during collective consultation. Bruce began by demonstrating that protective awards have risen considerably for failures to adequately inform and consult. But the issue of what defines an "establishment" is critically important. In Section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992, the UK definition of "establishment" is provided. The Collective Redundancy Directive and Acquired Rights Directive gave two options for the definition, and the UK opted for the second one, but the wording was then changed in such a way that it deviated from the original definition provided for in the directives.

More recently, the case of USDAW vs Woolworths and Ethel Austin has established that the definition of "establishment" is a matter of European law. The judgement in this case (which is now being appealed by the government) resulted in the removal of the words "at one establishment" from UK law, as they do not reflect the EU directive.

Bruce stated that this change in legal direction creates an opportunity for trade unions to develop recognition strategies, as the law dictates a need to appoint appropriate representatives for the workforce where it is not fully unionised. Employers now have the problem of complying with the requirements to meet election provisions, and trade unions have an opportunity to provide an answer to this issue through recognition.

In concluding his contribution, Bruce identified the practical effects of the USDAW decision since employers cannot manipulate the number of employees to be dismissed and cannot reorganise the business so that redundancies only take place at one establishment. The solution for employers is to recognise trade unions, because these organisations are then more likely to have representatives already in place in various parts of business, and therefore delays brought about by the election of representatives and money spent on this are avoided.

How best to tackle the attack on employment rights - Sarah Veale

The afternoon was concluded with a vigorous summary of how best to address the issues facing employment rights from TUC Head of Legal Services, Sarah Veale. Sarah pointed to the Coalition Government's belief that restricting employment rights aids the economy. This, she stated, is borne out of the Thatcher legacy with its privatisation agenda and removal of business regulation. In places, the government's ideology is several skewed, such as in the case of the government crackdown on immigration, where employers who take on and exploit migrant workers are getting off scot free.

The TUC is campaigning for fair pay, including through the re-establishment of wages councils and increases in the minimum wage. But Sarah highlighted that the absence of adequate enforcement programmes and the restrictions on industrial action inhibit the strength of such action. She dismissed the idea that employment regulation has any negative impact on the creation of jobs or employment opportunities, noting that the issue never appears at the top of employers' concerns.

The Lobbying Bill, which is currently going through parliament, is another issue she feels trade unions need to be aware of. The second part of this Bill limits the amount of money that can be spent in the lead up to an election by voluntary bodies, clearly aimed at trade union support for labour policies and candidates. The third part of the Bill places yet more regulation on trade unions - further evidence that the Bill is about trade union victimisation, built out of spite rather than its stated purpose.

Sarah returned to the vicious nature of the government's attack and described the consultation on zero-hours contracts as a sham that will resolve nothing. She quoted Tory MP Jacob Rees-Mogg, who said zero-hours contracts provide employers who "need a supply of flexible labour" as another example of the callous disregard of workers' rights.

Turning to the introduction of fees in Tribunals, Sarah was adamant that the system is already showing signs of weakness and called upon a Labour government to commit to repealing this hideous legislation along with many of the other insidious aspects of changes to employment and trade union rights. She hoped that delegates would join the campaigns that the TUC is engaged in; defending workers' rights and promoting trade union organisation.

Finally, Sarah told the conference that we have the impetus to demonstrate that our views on employment rights and the economy has real traction and the next two years provide the opportunity to drive these issues home.

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