The IER compiled a chronology of employment and trade union legislation introduced between 1979 and 2000 with the aim of exposing the impact of Tory-inspired legislation for trade unionists.

That chronology has since been updated by Jonathan Jeffries, Andrew Morretta and Alex Just. It now extends to 2017

1980 Employment Act (Jim Prior)

• Definition of lawful picketing restricted to own place of work

• 80% ballot needed to legalise a closed shop

• Funds offered for union ballots

• Restricted right to take secondary action

• Code of practice (six pickets)

• Repeal of statutory recognition procedure

• Restricts unfair dismissal and maternity rights

• Unfair dismissal rights from 1 year to 6 months in companies under 20

1982 Employment Act (Norman Tebbitt)

• Further restrictions on industrial action – eg. definition of trade dispute

• Further restricted action to ‘own’ employer

• Employers could obtain injunctions against unions and sue unions for damages

• 80% rule extended to ALL closed shops every 5 years

• Compensation for dismissal because of closed shop

• Removed union only labour clauses in commercial contracts

1984 Trade Union Act

• EC elections every 5 years by secret ballot

• Political fund ballots every 10 years

• Secret ballots before industrial action

1986 Public Order Act

• Introduced new criminal offences in relation to picketing

1988 Employment Act (Norman Fowler)

• Unions to compensate members disciplined for non-compliance with majority decisions

• Members can seek injunction if no pre-strike ballot

• Union finances to be open to inspection

• Unions prevented from paying members’ or officials’ fines

• Action to preserve post entry closed shop made unlawful

• New restrictions on industrial action and election ballots

• Ballots for separate workplaces

• Ballots for non-voting EC members

• Election addresses controlled

• Independent scrutiny

• Establishment of CROTUM

1989 Employment Act

• Tribunal pre-hearing review and proposed deposit of £150

• Removal of restrictions on the work of women and young workers

• Exemption of small employer from providing details of disciplinary procedures

• Restricts time off with pay for union duties

• Written reasons for dismissal now require 2 years’ service

• Redundancy rebates abolished

• Abolition of training commission

1990 Employment Act

• Attack on pre-entry closed shop – unlawful to refuse to employ non-union member

• All secondary action now unlawful

• Unions liable for action induced by ANY official unless written repudiation using statutory form of words sent to all members

• Selective dismissal of strikers taking unofficial action

• Extended power of CROTUM

1992 Trade Union & Labour Relations (Consolidation) Act

• Brings together all collective employment rights including trade union finances and elections; union members’ rights including dismissal, time off; redundancy consultation; ACAS, CAC and CROTUM; industrial action legislation

• Does not cover individual rights like unfair dismissal, redundancy pay, maternity etc (these are covered by 1978 EPCA)

1993 Trade Union Reform and Employment Rights Act

• Individuals can seek injunction against unlawful action

Trade Unions:

• Creation of Commissioner for Protection Against Unlawful Industrial Action

• 7 days notice of ballots and of industrial action

• Members to be involved in ballot to be identified

• Attack on Bridlington procedures

• Written consent for check-off every three years

• Financial records, including salaries, to be available

• Checks on election ballots

• Independent scrutiny of strike ballots

• All industrial action ballots to be postal

• Postal ballots on union mergers

• New powers for Certification Officer to check union finances

• Higher penalties against unions failing to keep proper accounts

• ‘Wilson/Palmer’ Amendment (sweeteners to those moving to individual contracts)

Individuals (EC inspired):

• Maternity leave increased to 14 weeks with no length of service requirement

• Right to written statement within 8 weeks for those working over 8 hours a week

• Unlawful to dismiss H&S rep in course of duties AND those walking off unsafe site

• Right of individual to challenge collective agreement in contravention of equal treatment terms

• Changes to Transfer of Undertakings Regulations

• Changes to redundancy terms (consultation)

Miscellaneous

• Abolition of Wages Councils

• Changes to Tribunals and EAT procedures

• Career services out of Local Authority control

1996 Employment Rights Act

Employment Particulars

• Written statement of employment particulars required setting out terms and conditions of employment

• May include references to applicable collective agreements

• Must specify disciplinary rules and grievance procedures

• Protection of Wages and Guarantee Payments

• Unauthorised deductions not permitted subject to exceptions, including participation in industrial action, overpayment, cash shortages or stock deficiencies

• Pay for workless day guaranteed to maximum per day

• Sunday Working: Shop and betting workers may refuse Sunday work if employed prior to Sunday legislation commencement date, those employed after may opt out with three months notice

• Protected Disclosures: Amendments from Public Interest Disclosure Act 1998 provide protection for disclosure of specified matters including worker health and safety and damage to environment

• Detriment in Employment: Protection from employer retaliation including health and safety activities, refusal to carry out unsafe work, refusal to work Sundays if protected worker, refusal to work contrary to Working Time Regulations 1998, carrying out representative duties, taking family or domestic leave

Family, Domestic, Maternity, Parental and Other Leave

• Entitlement to time off for to make domestic arrangements or look for work if declared redundant

• Time off for medical appointments for pregnant employee, maternity leave no less than 18 weeks and parental leave up to 13 weeks, employment protection and right of return

Termination and Unfair Dismissal

• One month minimum notice period for termination or resignation, may agree to pay in lieu, employee entitled to written statement of reasons for dismissal

• Must be employed one year for unfair dismissal complaint, subject to exceptions such as for taking protected industrial action, exercising health and safety rights, acting as employee representative

• Complaint to be within three months of dismissal

• Compensatory award cap

Redundancy Payments

• Eligibility two years continuous service, normal retiring age excepted, claim must be made within six months, weekly cap

• Entitlement where employer ceasing to carrying on business for which employee employed or lay off/short time for four consecutive weeks, six in thirteen weeks

1996 Employment Tribunals Act

• Employment [then “industrial”] tribunals to cover all matters arising out of employment contracts along with specified duties set out in various Acts

• Tribunal to consist of a chair and representative of employee and employer interests, subject to agreement otherwise

• Person may appear in person or with representative

• Tribunal panel may conduct own review of decision in limited circumstances

• Employment Appeal Tribunal to hear appeals from tribunal decisions on questions of law only under Employment Rights Act 1996, also appeals under various other Acts

• Cases heard by judge and members appointed equally from employee and employer interests

1998 Employment Rights (Dispute Resolution) Act

• Renames industrial tribunals as employment tribunals

• Amends Trade Union Labour Relations (Consolidation) Act 1992 to provide for complaints to employment tribunal over employer deductions for political fund where objections or exception, also to provide for non-mandatory arbitration process for unfair dismissal complaints under TULRA through Advisory, Conciliation and Arbitration Service (ACAS)

1998 Public Interest Disclosure Act

• Protects persons making disclosures in public interest through amendments to Employment Rights Act 1998 and Trade Union Labour Relations (Consolidation) Act 1992

1998 National Minimum Wage Act

• National minimum wage for those over 18, subject to exceptions for training, volunteer work, residents in charities and religious communities

• Low Pay Commission to recommend minimum rate changes and coverage

1998 Working Time Regulations

• Implements EC Directive with respect to maximum working hours (subject to individual agreement); rest breaks, annual leave

*Does not apply to specified sectors, including air, rail, road and sea, armed forces and police

• Subject to modification under collective agreements

1998 Human Rights Act

• Give effect to European Convention on Human Rights with respect to specified provisions

*Protection from discrimination by public authority, including those whose functions are of a public nature

• UK legislation (primary and subordinate) to be read consistent with Act

• Provisions to fast-track changes to legislation found incompatible

• Court remedy declaration and compensatory; Parliament to make any legislative changes

• Minister must make statement of compatibility with Act on introducing new legislation

1999 Employment Relations Act

• Amendments to Trade Union Labour Relations (Consolidation) Act 1992

• Recognition and negotiation procedures for employers with at least 21 workers, establishment of bargaining unit

• Derecognition from loss of trade union independence or majority support of bargaining unit

• Complaint process for use of political funds and breach of union disciplinary, electoral or other internal rules

• Dismissal for participation in official industrial action deemed unfair within a protected period of 8 weeks

• Ballot and notice provisions for strike or industrial action

Disciplinary and Grievance Hearing

• Employee permitted to bring companion, who may be trade union official or representative to any hearing

• Employer not required to have process, Code in regulations provides guidelines

• Disciplinary hearing and grievance hearing defined

Other Provisions

• Part-time workers to be treated no less favourably; non-enforceable Code to eliminate discrimination

• Abolishes offices of Commissioner for Rights of Trade Union Members and Commissioner for Protection Against Unlawful Industrial Action

• Funds to be provided to assist in developing employment partnerships

• Regulation of employment agencies

• Regulation with respect to treatment of employees in transfer of undertakings (EC)

• Amends Employment Rights Act and TULRA to prevent complaint over unfair dismissal if action for purposes of national security

1999 Disability Rights Commission Act

• Establishes Commission to work towards elimination of discrimination against disabled persons and conduct ongoing review of Disability Discrimination Act 1995

• Action plan may be established to remedy discrimination;

• Commission may apply for injunction where discrimination persistent

2000 Regulatory Investigatory Powers Act

• Consolidates investigatory powers including surveillance and interception of communications (public and private)

• Designed to ensure compliance with human rights requirements

2002 Employment Relations Act (EA)

• an increase in the period of maternity leave to six months’ paid maternity leave followed by up to six months’ unpaid leave.

• the introduction of a new right to two weeks’ paternity leave paid at the same standard rate as SMP. This is in addition to the existing right to 13 weeks’ parental leave.

• similar entitlements for adoptive parents (who have no right to paid leave at present).

• award costs against a party’s representative for conducting the proceedings unreasonably (though ministers have made it clear that this will not apply in the case of representatives of ‘not-for-profit’ organisations, eg trade union officers); and

• order one party to make payments to the other in respect of the time spent in preparing for a case.

• amended rules governing employers’ handling of parental leave and pay issues.

• award costs against a party’s representative for conducting the proceedings unreasonably (though ministers have made it clear that this will not apply in the case of representatives of ‘not-for-profit’ organisations, eg trade union officers); and

• order one party to make payments to the other in respect of the time spent in preparing for a case.

• The Act also provides the basis for amending employment tribunal rules to introduce a fixed period for conciliation by the Advisory, Conciliation and Arbitration Service (ACAS), and a tougher approach to so called “ weak” cases.

• The Act introduces a new statutory right to paid time off work for trade union ‘learning representatives’,

2004 Employment Relations Act

• measures to tackle the intimidation of workers during recognition and derecognition ballots by introducing rules which define improper campaigning activity by employers and unions.

• measures to improve the operation of the statutory recognition procedure. For example, the appropriate bargaining unit; clarifies the “topics” for collective bargaining; allows unions to communicate with workers at an earlier stage in the process, and clarifies and builds upon the current legislation relating to the supply of information to the Central Arbitration Committee and the Advisory Conciliation and Arbitration Service (Acas);

• provisions to increase the protections against the dismissal of employees taking official, lawfully-organised industrial action by extending the “protected period” from 8 to 12 weeks; exempting “lock out” days from the 12 week protected period;

• procedural steps to resolve industrial disputes and measures to simplify the law on industrial action ballots and ballot notices;

• measures to widen the ability of unions to expel or exclude racist activists and others whose political behaviour is incompatible with trade union membership.

• a power for the Secretary of State to make funds available to independent trade unions and federations of trade unions to modernise their operations (see Written Statement of 10 February 2004);

• measures to implement the European Court of Human Rights judgment in the case of Wilson & Palmer, which ensure that union members have clear rights to use their union’s services, and cannot be induced by employers to relinquish essential union rights or dissuaded from seeking union recognition;

• measures to improve the operation of some individual employment rights such as a clarification of the role of the companion in grievance and disciplinary hearings; and technical changes to flexible working legislation concerning protections from unfair dismissal;

• new protections for employees who are dismissed or who suffer other detriment because they are summoned or have been away from work on jury service;

• a power to make regulations to introduce information and consultation in the workplace (in Great Britain and Northern Ireland), by implementing the EC Directive on Information and Consultation (Council Directive 2002/14/EC) The Government consultation on the draft regulations closed on 7 November 2003. The Government’s response sets out the findings of the consultation;

• measures to improve the enforcement regime of the national minimum wage.

• measures to give the Certification Officer greater powers to strike out weak or vexatious claims;

• measures to improve trade union regulation, and a power to allow the Secretary of State to include non-postal methods of balloting in statutory union elections and ballots;

2004 Information and Consultation Regulations

• The Regulations do not impose a set method for employers to inform and consult their employees nor does it give a right for recognised trade unions to be consulted automatically under this legislation.

• The requirements to inform and consult employees are triggered either by a formal, written request for an information and consultation agreement from at least 10% of employees, with a minimum 15 and a maximum of 2,500, or where an employer chooses to start negotiations.

• In either case the employer will need to make arrangements to allow the employees to elect representatives to negotiate the agreement.

• The regulations impose £5,000 fine on employers who refuse to consult or inform under this legislation.

2004 Warwick Agreement (trade unions and labour)

Following discussions between unions and labour ministers, the “Warwick Agreement” set out agreed policy proposals including:

• An end to the two-tier workforce across the entire public sector

• 8 public holidays plus four weeks annual leave – but he will keep the opt-out

• Family Friendly policies- improved time off to attend to a sick relative

• Flexible working for workers caring for a disabled family member

• Gangmaster regulation and an end to exploitation of migrant workers

• Will support an EU Directive on Agency Workers next electoral term

• Will introduce legislation this term on Corporate manslaughter

• Steps to close the equality gap

• The introduction of sectoral bargaining in trial sectors

This fell short of trade union demands for repeal of anti-trade union (Tory) laws.

2008 Employment Act (EA)

• repeal the existing statutory dispute resolution procedures and related provisions about procedural unfairness in dismissal cases

• confer discretionary powers on employment tribunals to adjust awards by up to 25 per cent if parties have failed unreasonably to comply with a relevant Code of Practice

• make changes to the law relating to conciliation by Acas

• amend tribunals’ powers by which they may reach a determination without a hearing

• allow tribunals to award compensation for financial loss in certain types of monetary claim

• introduce a new method of calculating arrears

• replace enforcement and penalty notices with a single notice of underpayment which will include a civil penalty against employers who have not complied with NMW requirements

• increase the civil enforcement powers available to officers enforcing the NMW

• make offences under NMW Act 1998 triable in the Crown court or the Magistrates’ court

• increase the criminal investigative powers available to officers enforcing the NMW

• provides that, where an offence has been committed by partnerships in Scotland, any individual partners who are culpable may be prosecuted as well as the partnership itself

• Section 18 allows officers enforcing the NMW and officers enforcing employment agency standards to share information for the purpose of their respective enforcement functions.

• Section 19 amends trade union membership law in line with the ruling of the European Court of Human Rights on Aslef v UK.

2009 The Minimum Wage Regulations

• Amendments made to existing Minimum Wage regulations so employers could not include tips and gratuities when calculating wages.

2009 European Public Limited Liability Company (Employee Involvement) (Great Britain) Regulations

• These regulations were a heavily diluted form of German style worker participation. The UK approach under these regulations required little more than employees of large companies be given general information on progress and strategy.

2010 Equality Act

The Act was a consolidation, rationalisation, harmonisation and revision of various existing employment law acts and regulations including, The Equal Pay Act 1970, The Sex Discrimination Act 1975, The Race Relations Act 1976, The Disability Discrimination Act 1995 and various Employment Equality regulations which related to Religious beliefs, sexual orientation and age.

Broad Changes

• The Act consolidated the disparate groups protected under these Acts and statutory instruments as individuals with ‘protected characteristics.’
• Direct discrimination is dealt with under section 13 of the Act, and applies to all individuals with protected characteristics and Indirect discrimination was given a clear definition in section 19.
• Employees mistakenly perceived of having a protected characteristic, and employees associated with someone with a protected characteristic who as a consequence are treated less favourably by their employer were given a measure of statutory protection.
• Tribunals were given the power to make recommendations for the benefit of members of the workforce, other than the applicant.
• The public sector equality duty was established. The duty applies to public bodies, and to other organisations, and requires authorities “when making decisions of a strategic nature about how to exercise its functions, to have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage”.
• Statutory questionnaires introduced under s138 sent to employers by prospective tribunal claimants who considered that they had been discriminated against were of considerable help to claimants, but were withdrawn in 2013 under the ERRA 2013.

Harassment

• Protection against harassment by third parties was extended to all protected characteristics, but employer liability for third party harassment was withdrawn by the ERRA 2013.

Race Discrimination

• Caste discrimination can be incorporated under the Act if a Minister makes an order to include ‘caste’ within the definition of race. In 2016, the Conservative government announced that it was to open a consultation on the matter.

Gender Equality

• Gender Pay Gap Information under s78 was implemented in 2016, and the first reports from firms with 250 or more employees are required to be published in April 2018.
• Permits claims for direct gender pay discrimination without a comparator.
• Pay secrecy clauses became unenforceable.

Sexual Orientation

• It is no longer a requirement for medical supervision in relation to gender reassignment to get protection for discrimination and harassment, and the ‘association’ aspect provides for a direct discrimination claim if you are the partner of a transsexual.

Disability

• The complicated concept of ‘disability related’ discrimination, was replaced by ‘discrimination arising from disability.’ The old requirement to show unjustified less favourable treatment became a requirement only to show that unfavourable treatment has been meted out ‘because of something arising in consequence of [the claimant’s] disability.’
• There is no longer any need for a comparator and Claims can only be brought by those who are themselves disabled.
• Employers are permitted to justify disability related discrimination by showing that it is a proportionate means towards a legitimate end.
• A failure in certain circumstances by an employer to make physical ‘reasonable adjustments’ to the workplace, and to provisions, criteria and practices which put an ‘interested disabled person’ at a ‘substantial disadvantage’, or to fail to provide certain auxiliary aids or services can now amount to unlawful discrimination.
• The Act restricted the scope for employers to ask about disability and health, and to require applicants to undergo health tests during the recruitment process.
• However, there is an exception where an employee is required to undertake duties for which a pre-employment health check is essential, and health checks after an offer of employment has been made, are not subject to restriction.

2010 Equality Act 2010 (Disability) Regulations

• These ‘fine tune’ the disability provisions of the Equality Act, revoking and revising the Disability Discrimination (Meaning of Disability) Regulations 1996.
• A disabled person must – although there are certain exceptions relating to those with severe disfigurement, HIV, cancer, and MS – ‘have a physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities. Any discrimination complained of under the Act must arise from that disability.
• Part 2 of the Regulations excludes certain categories from this definition, including Alcoholism, kleptomania and hayfever which are not deemed to be ‘impairments.’
• It also clarifies the status of those with various severe ophthalmological conditions as ‘disabled persons’ within the meaning of the Act.

2010 Additional Paternity Leave Regulations

• These regulations introduced the concept of shared parental leave. They permitted fathers and same sex partners to take up to 26 weeks Additional Paternity Leave (‘APL’) if the mother or primary adopter has returned to work, in addition to the 2 weeks Statutory Paternity Leave (now called Ordinary Paternity Leave) already available.
• The regulations applied to employees only, and the mother must have been entitled to maternity leave, Statutory Maternity Pay or maternity allowance.
• The right was exercisable, after 8 weeks notice, between 20 and 52 weeks after the birth.
• ‘APL’ has since 2014 given way to a more complex regime of interchangeable maternal and parental leave entitlements (see below).

2010 Employment Relations Act 1999 (Blacklists) Regulations

• These regulations were part of the 1999 ERA but did not come into force until the 2009 Consulting Association scandal had exposed the blacklisting of trade union activists, and those who had raised health and safety issues with a number of major construction firms.
• Regulation 3 prohibits any person from compiling, using, selling or supplying a ‘prohibited list’ which is defined as a a list which- (a) contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and (b) is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.”
• Under regulation 5, a person denied work for a reason relating to a contravention of regulation 3 can complain to an employment tribunal.
• There is a presumption (which the employer can rebut) that if a workers’ name is found on a Blacklist which a company has in their possession or has used then that worker should be awarded compensation in line with compensation outlined in the Regulations.
• Regulation 6 extends liability under regulation 5 to employment agencies, and regulation 11(10) permits ‘a worker’ (a term which includes the self-employed) to bring a claim for a detriment.
• Successful tribunal claims attract a minimum award of £5,000 and a maximum of £65,300, and claims under regulation 5 can include compensation for injury to feelings.
• Claims under these Blacklisting Regulations can also be brought as a breach of statutory duty in the civil courts.
• However, the Blacklisting Regulations were not retrospective meaning workers who were Blacklisted before 2010 had to bring claims against employers under TULRA sections 137 and 152.

2011 The National Minimum Wage Regulations

• Amended to permit HMRC to ‘name and shame’ employers who breached the regulations.

2011 Agency Workers Regulations

• These Regulations oblige agencies to provide workers who have been working for 12 continuous weeks on one assignment for one of the agency’s clients, with the same pay and conditions as their ‘permanent’ colleagues. Pay, working time, access to workplace facilities, and holiday provision are the key areas covered. However, sick pay provision is excluded.
• Article 2 of the underlying EU Temporary Agency Work Directive stated that the aim was to secure equal treatment “by recognising temporary agencies as employers.” However, the UK Regulations fall short of this, ensuring that agency workers remain of indeterminate status, neither employed by the agency nor by the agency’s customer, and consequently outside the ambit of the unfair dismissal regime.
• Article 5(2) of the Directive permits the so called ‘Swedish derogation,’ “where temporary agency workers who have a permanent contract of employment with a temporary-work agency [and] continue to be paid in the time between assignments” can be paid less than their colleagues who are not employed by the agency but directly employed by the agency’s customer – the hirer. However, the minimum level of pay during ‘idle’ time under the 2011 UK Regulations is 50% of the standard rate, a sum which is not required to match National Minimum Wage standards. It is not, however, difficult to keep an agency employee paid the minimum wage constantly working, particularly when obliged in practice to accept whatever work is offered, however uncongenial.
• Anecdotal evidence, and common sense, suggests that agencies and hirers often try to get around these Regulations by transferring workers on to other contracts as the 12-week stage approaches to avoid the obligation to put the agency worker on an improved pay scale.

2011 Regulation (EU) 492/2011 (Freedom of Movement of Workers)

• Free movement of labour is one of the four fundamental economic freedoms on which the European Union is based. This revision of a regulation that was first issued in 1968 is, like all EU regulations, ‘binding in its entirety and directly applicable in all Member States,’ and is to be distinguished from regulations issued by the government as statutory instruments under the authority of Acts of Parliament (‘secondary legislation’) – the usual means by which the provisions of EU Directives are implemented.
• Like EU Directives, an EU Regulation is said to be ‘directly effective’ against public authorities, and when necessary its provisions can be relied upon by litigants in the UK courts.
• The Regulation essentially requires Member States to prohibit any discriminatory treatment of EU nationals in the sphere of employment and trade union membership except in relation to ‘conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.’
• The Regulation extends to requiring that workers from other EU states “shall enjoy all the rights and benefits accorded to national workers in matters of housing, including ownership of the housing,” and that the children of EU migrants be admitted to state education.

2012 The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order

• Amended the Employment Rights Act 1996, increased the qualifying period for unfair dismissal from one year to two years for those employed after 5th April 2012.

2012 The Employment Tribunals Act 1996 (Tribunal Composition) Order.

• Employment judges were given the discretion to choose, in certain circumstances, whether to hear an unfair dismissal case, alone, or with a ‘full panel.’

2012 The Employment Tribunals (Constitution and Rules of Procedure) Amendment Regulations.

• Witness statements are now to be taken ‘as read’, dispensing, at the discretion of the judge, with the need for witnesses to attend tribunal.
• Witnesses are no longer able to claim expenses for attending tribunal.
• The maximum costs awardable in a tribunal case, were doubled from £10,000 to £20,000.
• Deposit Orders, made, at the discretion of the Judge, in cases where it appears that one of the parties has little chance of success, were also doubled and can now be as much as £1,000 for each claim.

2013 Enterprise and Regulatory Reform Act.

This ‘scatter gun’ Act made a number of significant changes to UK employment law including:

• Claims for breaches of health and safety requirements at work were restricted by shifting the burden of proof back on the worker.
• The last of the Wage Councils, the Agricultural Wages Board was abolished.
• Employment Tribunals were given the power to require deposit orders in relation to specific allegations.
• The qualifying period for unfair dismissal claims on grounds of political opinion was abolished.
• The maximum award for unfair dismissal was capped at one year’s gross pay for those earning less than £74,200 each year (in 2017 this cap is now £80,000).

Whistleblowing

• Whistle blowing protections were narrowed to encompass only matters of ‘public interest. (In Parkins v Sodexho [2001] IRLR 109 the EAT held that a dismissal made following an employee’s complaints about breaches of their employment contract fell within the ambit of the 1998 Act.)
• The Act deprived employees relying on the disclosure of information not considered to be matters of public interest in employment claims of ‘whistle blower’ status and gave tribunals the right to reduce awards by up to 25% where it was considered that there was an element of ‘bad faith’ behind the disclosure, and made it possible in certain circumstances for co-workers to be personally liable for whatever wrong had caused the complainant to make the disclosure in question.
• ERA 1996 whistle blowing was, however, extended beyond employees to embrace ‘workers’.

No fault’ dismissal

• Proposals for ‘no fault’ dismissals introduced the concept of ‘settlement agreements,’ effectively providing legislative recognition of the long standing practice of giving ‘redundancy’ payments to workers who have essentially been sacked, payments usually made with a view to reducing the likelihood of the dismissed worker bringing a claim for unfair dismissal.
• The concept of ‘without prejudice’ negotiations has been widened, building on the existing compromise agreement framework, permitting arrangements for a worker to waive the right to bring a claim in return for a payment.

Employee shareholder’

• The Act introduced the much trialed concept of the ‘employee shareholder’, allowing existing employees to sign away rights to redundancy payments, unfair dismissal, the right to request flexible working and certain maternity rights, in return for a share in the company.
• However, employees who become ‘employee shareholders’ would still have the right to bring claims if they believe they have been dismissed for an automatically unfair or discriminatory reason.

Harassment

• The Act removed the right to make ‘third –party harassment’ claims – employers have ceased to be vicariously liable in such circumstances for the actions of their customers and suppliers – and abandoned the discrimination questionnaires introduced in 2010.

Changes to Employment Tribunals

• The Act introduced Acas ‘Early Conciliation,’ which was to be implemented in 2014, and empowers tribunals to impose financial penalties upon employers who were unsuccessful at tribunal – a sum equivalent to up to half the compensation awarded the claimant, between £100 and £5,000. The money goes to the Exchequer the intention being to discourage employers from breaching those rights and reduce claims, rather than compensate.
• It also gave tribunals the discretion to require that respondents undertake ‘equal pay audits’ on losing an equal pay case – a measure implemented in 2014.
• The Act permits a single judge to hear certain EAT cases, and gave the government the power to permit Legal Officers to hear claims ‘subject to the affirmative resolution of Parliament’.

2013 Employment Tribunals and the Employment Appeal Tribunal Fees Order

Arguable, the most significant attack on employee rights by the Coalition Government was the introduction of fees for those bringing claims to the Employment Tribunal. Fees were introduced by The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 under powers conferred by the Tribunals, Courts and Enforcement Act 2007.

• Tribunal fees have priced tens of thousands of people out of justice. To bring an unfair dismissal claim you now need to pay an issuing fee of £250 and a hearing fee of £950. Anti-discrimination, equal pay rights, and a range of other individual employment rights, have been effectively withdrawn from the millions of British people who cannot afford to pay £1,200 to bring a claim against their employer.
• Recent research by academics at Oxford University has shown that across the board the impact of Employment Tribunal Fees has led to a two thirds reductions in most claims. Sex discrimination cases have reduced by a staggering 80% from their pre-fees level.
• Withheld wage claims are now uneconomic for the lower paid. If you think your employer owes you £400, the gamble of paying a £130 issuing fee, and a £250 hearing fee for a claim which might fail, and, might well not even be paid if it is successful, is a risk many are not prepared to make.

2013 Employment Tribunals (Constitution and Rules of Procedure) Regulations.

• These Regulations relaxed and simplified the 2004 Regulations, and integrated the fees regime into the rules of procedure. To very much simplify the considerable 2013 revisions, the new regulations facilitate the sifting and striking out of weak claims on examination of the claim and response forms, and at preliminary hearings, and oblige tribunals to promote the use of alternative dispute resolution by the parties at all stages of a claim.

2013 The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order

• The minimum period for consultation with workers where an employer proposes to make 100 or more employees redundant within a 90 day period was cut from 90 days to 45 days before the first of the dismissals.
• Workers coming to the end of fixed term contracts were excluded from the consultation regime.

2013 Parental Leave (EU Directive) Regulations

The regulations are, as the title suggests a grudging implementation of the bare minimum demanded by the Parental Leave Directive, and the rights conferred are exercisable in addition to paternity and maternity leave entitlements.

• An employee is now permitted a total of up to 18 weeks unpaid leave for each child (it had previously been 13 weeks), and instead of being required to take that leave prior to the child’s 5th birthday it can now be taken at any time before the 18th birthday, provided 21 days’ notice is given.
• The employer cannot refuse to permit the employee to take the time off, but are able in certain circumstances to postpone the leave. Parents who insist on taking any of their leave and perceive that they have suffered a detriment at work as a result can make a claim against their employer at tribunal.

2014 The Flexible Working Regulations

• The right to request ‘flexible working’ has been extended to all employees with six month’s service.
• However, the right amounts to little more than a requirement for an employer to follow a set procedure when ‘considering’ the request.
• If an employer fails to consider an employee request, the employer could face a tribunal claim and the prospect of having to pay a modest award to the disappointed employee, but this assumed that the employee is willing to gamble paying a more substantial employment tribunal fee on the result.

2014 Collective Redundancies and Transfer of Undertakings (Protection of Employees)(Amendment) Regulations

• The impact assessment in December 2013 made the rather feeble claim that the reforms under these Regulations “seeks to remove unnecessary gold-plating, allowing parties to concentrate on the key issues, and discouraging delay or avoidance of consultation.”
• The anticipated repeal of the 2006 ‘gold plating’ did not occur. In what might be seen as a victory for pragmatism over more ideologically led reform, the BIS consultation had indicated that employers did not want to see ‘service provision changes’ – perhaps better known as ‘contracting out’ – taken out of the reach of the TUPE employee protection, wary of a return to the uncertainty of the pre-2006 days, and the business disputes that had led to the domestic augmentation of basic rights.
• However, the 2014 TUPE regulations, in accord to a then recent ‘employer friendly’ CJEU ruling, provided that where the terms and conditions of transferred staff are governed by a collective agreement, changes made under that agreement subsequent to the transfer will not apply to the contracts of the transferred employees, and allow employers to seek to re- negotiate changes to terms and conditions one year after the transfer of the business.

2014 Children and Families Act

2014 The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations

2014 The Employment Tribunals (Constitution and Rules of Procedure)(Amendment) Regulations

2014 The Employment Tribunals (Early Conciliation: Exemptions and rules of Procedure) Regulations

2014 The Paternity and Adoption Leave Regulations (Amendment) (No2) Regulations

2014 Maternity and Parental Leave (Amendment) regulations

2014 Statutory Shared Parental Leave Regulations

• These rather complex regulations have introduced a new flexibility to maternity, paternity and adoptive leave, permitting working parents to split the available leave between them.
• ‘Additional paternity leave’ has been dispensed with, but ‘ordinary paternity leave’, of one or two weeks remains.
• Now, for example, after 5 months a mother may elect (having given 2 months’ notice) to ‘curtail’ her full paid leave (39 weeks out of the 52 available as statutory maternity leave or ‘SML’) by splitting the 4 months remaining to her to allow her husband to spend the next 2 months at home with her. She might choose to return to work, allowing her husband to spend four months at home with the baby. Portions of the available leave can be taken at almost any time during the first year after birth, although taking in excess of 3 periods of ‘discontinuous leave’ requires the employer’s permission.
• The same statutory rights which protect workers taking other forms of parental/caring leave from disadvantage, unfair dismissal, and discrimination, are the same requirements for the employer to hold the job open, which apply in relation to SPL.
• The major drawback to SPL is that, as with SML, unless the employer chooses to enhance the statutory £139.53 weekly pay, then financial considerations usually make it very difficult for parents to take any leave beyond the first six weeks during which the mother/ main adopter receives 90% of her normal take home pay (earnings related SML cannot be shared).
• The system does not extend to permitting grandparents or other relatives to share leave – it is restricted to two partners during the year following the birth or adoption. It is not, for example, available to a single parent to share with the child’s grandmother.
• Only one partner ‘takes’ the SPL, which can then be split between the partners. Up to 50 of the 52 weeks of SML can be shared, although only 37 weeks of paid leave can be shared (and 4 of these weeks will be in the initial 6 weeks of earnings related to the SML period, which will not be likely to be sacrificed for 4 shared weeks on £153.38). Where both are employed, have been employed for 6 months, and have satisfied the earnings requirements, both are entitled to SPL and to Statutory Shared Parental Pay – the weeks of unpaid leave can be divided up between them. However, if one of the partners is not employed, and therefore not entitled to SPL, the couple may still be able to take advantage of SPL and Statutory Shared Parental Pay.

2016 The National Minimum Wage (Amendment) Regulations

• These regulations doubled the financial penalty for underpayment of the National Minimum Wage and increased the NMW for those over 25 to £7.20 an hour calling this ‘the national living wage rate.’ However, this new increased rate is not the same as the real Living Wage which is calculated each year by the Living Wage Commission
• By regulation 4A the NMW for 21-25 year olds is £6.70; for 18-21 year olds £5.30; for those under 18 £3.87 and £3.30 for apprentices.

2016 Trade Union Act

The principal aims of the Act appear to be to make it extremely difficult or impossible for workers to engage in lawful industrial action, and to starve the trade unions and the labour movement of funds.

The major changes made under the Trade Union Act 2016 are:

• In all industrial action ballots, at least 50% of those entitled to vote must do so and a simple majority must be in favour of action. Therefore, if 100 members are balloted, at least 50 must vote. If 50 vote, at least 26 must vote yes for there to be a valid mandate. If all 100 vote, 51 would need to vote in favour.
• If the majority of those entitled to vote are ‘normally engaged’ in the provision of ‘important public services’ (specified as health, education, transport, border security and fire-fighting services) at least 40% of those entitled to vote must vote in favour of action (in addition to the 50% turnout threshold). Therefore, if 100 members are balloted, a minimum of 50 must vote and at least 40 must vote yes for there to be a valid mandate. A simple majority is still required in all ballots, so if all 100 members had voted, then 51 votes in favour would be required to enable action.
• This 40% threshold is arguably discriminatory: 73% of those likely to be in these ‘important public services’ will be women and the Act’s definition of what counts as an essential service is out of keeping with international legal norms. The International Labour Organization defines “essential services” as services where “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”. It is hard to see how the Central Line not running or a child missing one day of schooling would “endanger life, personal safety or health of the whole or part of the population”.
• Unions now must give 14 days’ notice of any industrial action (unless the employer agrees that 7 days’ notice is enough). The previous requirement was to give 7 days’ notice.
• Unions now have to include additional information on ballot papers, including a clearer description of the trade dispute and the planned industrial action, so that workers know exactly what they are voting for.
• Previously, industrial action must have taken place within four to eight weeks of the ballot and action could be taken indefinitely, provided the industrial dispute remains live. This was repealed under the 2016 Act which provides that a ballot mandate expires after six months, or up to nine months if both sides agree.
• For employers in the public sector (and some private sector employers that provide public services), ‘check-off’ (the deduction of trade union membership subs via payroll) will only be permitted if the worker can pay their subscriptions by other means and the union contributes to the cost of administering the system.
• Some of the current Code of Practice on picketing has been given statutory force e.g. the requirement to appoint a picket supervisor.
• A new process for trade union subscriptions is being introduced that allows new members to make an active choice about whether to pay into political funds. Information on opting out from such contributions will need to be provided on an annual basis. These provisions represent another bid to starve the labour movement of funds. After a transitional period, unions will only be permitted to invite new members to contribute to a union’s political fund, and existing members will have to be reminded every year that they can opt out if they wish. Unions which establish political funds after the transitional period will similarly be restricted to inviting members to opt in to the fund.
• Employers in the public sector (and some private sector employers that provide public services) will have to publish information on ‘facility time’ such as the amount of paid time off for union duties and activities. The Act also allows the government to issue regulations restricting facility time at particular employers.
• The government must commission an independent review of possible methods of electronic balloting, although the Act does not include any commitment to its introduction.
• There are new powers under the 2016 Act for the Certification Officer to investigate and take enforcement action against trade unions for breaches of their statutory duties. Theresa May’s Conservative government initiated a consultation exercise in April 2017 with proposals for the Certification Officer, who will be able to issue fines of up to £20,000 for breaking the law including serious breaches of election rules or mismanagement of their political funds.