Below, we discuss some of the recent employment cases we have been involved in.
Use of agency workers during strikes
The government has attempted to justify the change in regulations, allowing agency workers to replace striking staff during industrial action, by claiming that trade unions have been prioritising disruption over constructive negotiations in a bid to remain relevant.
The government put its move in the context of the ongoing rail strikes, but it actually follows a pattern of behaviour by a government that is seeking to disentangle itself from international conventions and treaties.
Ultimately, the background is the fallout from Brexit – with the government wanting to show that the UK is ‘taking back control’ of its laws.
Given that the UK is bound by several international obligations it has been signed up to for years, there is every prospect of a judicial review over the agency staff regulations.
The Conservatives may not want to recognise it, but the UK has ratified international treaties, including ILO (International Labour Organization) Convention 87 on Freedom of Association, which protects the right to strike.
The ILO’s Committee of Experts has ruled that laws allowing employers to replace striking workers are a serious impediment to the exercise of the right to strike. The European Court of Human Rights (ECHR) – which Tory leadership candidate Liz Truss has reportedly said she would be prepared to ditch if she became PM – has been guided by the ILO’s Committee of Experts when interpreting the European Convention, which protects the right to strike.
The irony of predominantly Tory politicians railing against international human rights institutions, is that you don’t need to look beyond UK law to see that the new measures may be unlawful. The legislation required will take the form of regulations to be made under the Employment Agencies Act 1973. Regulations under that Act can only be made after consultation with representative bodies – something which hasn’t taken place.
Bypassing collective bargaining rights
The attack on workers’ rights hasn’t been limited to the government. A host of UK-based companies have attempted to bypass established collective bargaining rights with trade unions recognised in their workplaces.
Two companies – INEOS and Kostal – tried to go round the unions, direct to the workforce with a deal the unions had rejected. However, Unite the union, together with Thompsons, who took on both cases, stopped them in their tracks and helped secure a fair deal for their workers.
Earlier this year, an Employment Appeal Tribunal (EAT) ordered global chemical firm, INEOS, to pay £3,830 each to 28 Unite members employed at its Grangemouth site after it tried to impose a 2.8 per cent pay award on them in 2017 – an offer which had previously been rejected by Unite.
The judgment is likely to have huge ramifications for workers everywhere.
Unite members had rightfully argued that imposing the pay increase outside the collective bargaining process amounted to an unlawful inducement to give up collective bargaining rights.
Documents disclosed during the legal proceedings revealed a member of INEOS’ senior leadership team had suggested the company needed to “engineer a way to get rid of Unite and replace them with a different representative body”, after the union’s members refused to vote in favour of the proposed offer.
The initial tribunal in 2018 ruled in favour of the workers, but INEOS appealed the judgment. The appeal was subsequently delayed pending the outcome of the related Kostal UK Ltd v Dunkley and ors case, which had progressed to the Supreme Court.
The Kostal case, in which Thompsons was again instructed by Unite, saw unionised members take legal action against their Rotherham-based employer for trying to bypass union pay negotiations. This was a ground-breaking case, billed at the time as the most significant trade union rights case in over a decade – and the first case in the UK’s highest court on trade union bargaining rights.
These two milestone cases should act as a warning to all employers. Any attempts to circumvent trade unions during the collective bargaining process will be met with fierce resistance – and the courts are on our side.
Fire and rehire
The practice of ‘fire and rehire’ presents workers with a stark choice – accept worse pay and terms and conditions, or lose your job.
That was the dilemma facing 42 Tesco workers in its Daventry and Litchfield distribution centres, before Usdaw – their trade union – represented by Thompsons, stepped in.
It led to a landmark victory in February at the High Court against the supermarket giant, over its decision to dismiss a large number of its staff and seek to re-engage them on inferior terms and conditions.
The court held that the 42 employees had been guaranteed an entitlement to a specific payment labelled ‘retained pay’ to keep them within the business, which Tesco intended to remove during the process of firing and rehiring.
The judge ruled that there was an implied term in the Tesco workers’ contracts that the right to terminate their employment could not be triggered if the aim was to remove the right to ‘retained pay’.
A recent Court of Appeal ruling earlier this month rowed back on the High Court decision, but Usdaw, with the support of Thompsons, has made clear it will now seek leave to appeal to the Supreme Court.
What all these cases highlight is the central role trade unions play in the workplace. The best way for workers to protect their pay and working conditions is by joining a trade union who have access to some of the best legal services in the country.
Whilst the Conservatives have our hard-won legal protections in their sights, Thompsons and the trade union movement will be there to fight back.