Three cases in this issue focus on different aspects of that protection: representation for employees facing a change in employer; and the job security of safety representatives and those employees who claim a statutory right. The outcome of these cases casts doubt on the effectiveness of the legislation.
Dismissals for asserting statutory rights
Mennell v Newell and Wright (Transport Contractors) Limited [1997] IRLR 519 (Court of Appeal)
Section 29 of the Employment Rights Act 1996 makes it automatically unfair to dismiss someone for asserting a statutory right. The statutory rights concerned include deductions from wages, minimum notice, union activities and time off.
In LELR 2 (Two years' service not needed if you insist on statutory rights) we reported the Employment Appeal Tribunal's decision in favour of Mr Mennell. The Court of Appeal has now overturned that decision.
Mr Mennell had been issued with a new contract which he refused to sign. He was dismissed as a result. One of the clauses in the new contract would have entitled his employers to deduct training costs from his final salary.
In his Tribunal claim he alleged that by refusing to sign the new contract he was asserting the statutory right not to suffer a deduction which would be contrary to the Wages Act (now section 13 of the Employment Rights Act 1996). He claimed that he was dismissed for asserting that statutory right and that consequently his dismissal was automatically unfair.
The Court of Appeal did not accept that argument. The appeal court said that Mr Mennell had not "asserted" any statutory right. An employee is only protected if she or he has alleged that the employer has breached a statutory right.
This does not mean that the employee needs to go as far as making a claim against the employer or starting Industrial Tribunal proceedings. It does mean that the employee must actually allege that a right has been infringed. It is enough that the employee communicates to the employer that she or he believes that a right has been infringed. The right does not need to be specified provided it is made reasonably clear to the employer what right is claimed to have been infringed.
Mr Mennell could not establish that he had made any such allegation, so his claim failed.
However, the other key aspect of the decision gives more cause for optimism. The Court of Appeal emphasised that the protection applies where an allegation of breach of statutory right has been made, even if no statutory right has been infringed. It is sufficient that the employee has made the allegation and that the allegation is the reason for dismissal.
Section 29 itself makes clear that it is immaterial whether the employee has the right concerned or whether it has been infringed. The allegation of breach of statutory right need not be correct, provided that the claim was made in good faith.
This has important practical implications for employees. The protection given by section 29 is particularly important for employees with less than two years' service, as it is a right which applies from day one of employment. In the past, new employees who, for example, were not issued with written contracts would be reluctant to press their entitlement in case they were branded "troublemakers" and sacked. Now, there is a positive advantage to raising such concerns. If the employee then faces dismissal she or he has the argument that the real reason for dismissal was the claim that a right had been infringed.
The main problem for employees is likely to be evidential. An employee should be able to show that a right has been asserted - provided there is evidence of the issue being raised with the employer in a clear fashion, preferably in writing. What will be more diffcult is showing that claiming the right was the reason for dismissal when employers will generally point to other reasons justifying the dismissal. Although asserting a right which does not exist can form the basis of a claim, employers will no doubt retort "am I likely to dismiss someone for making a claim which I knew would not succeed". Part of the answer may lie in the manner in which the claim was made: an issue considered in our next case.
Protection for safety reps
Shillito v Van Leer (UK) Limited [1997] IRLR 495 (EAT)
This case concerns the rights of safety representatives under section 44 of the Employment Rights Act 1996.
Mr Shillito was the senior TGWU shop steward at the factory. Employees working on a line in the factory complained of the odour emitted by a solvent and the line was closed down and the employees moved. The line safety representative raised the issue with Mr Shillito. The employers alleged that Mr Shillito failed to follow the agreed safety procedure, but instead saw the company first aider and insisted, allegedly belligerently, that the employees should be seen by the company doctor or sent to hospital. He was disciplined for his pains. The employers said his actions amounted to misconduct by failing to follow the agreed procedure and not acting as a responsible union representative.
Mr Shillito claimed that this amounted to victimisation because of his actions as a safety representative. The Industrial Tribunal and the Employment Appeal Tribunal rejected this claim. They did so on the grounds that he was not the safety representative for the line in question, nor was he acknowledged as a safety representative for acting outside the agreed procedure. These are narrow grounds, based essentially on the argument that if an employee is not a representative on safety for the employees concerned, he cannot be exercising safety representative functions by pursuing concerns on their behalf. This may be an unduly formalistic interpretation of the legislation, but the third ground for the decision is of even more cause for concern.
The EAT accepted that it is irrelevant whether the representative acted reasonably in raising the concerns, or in the manner in which they were raised. This is consistent with the decision in Bass Taverns Limited v Burgess [1995] IRLR 596 where the Court of Appeal upheld a complaint by a union representative who was disciplined for going "over the top" in criticising management.
The EAT accepted that Mr Shillito's employers could not legitimately discipline him for performing his functions in an unreasonable way, unacceptable to the employer, nor for intending to embarrass the company in front of external safety authorities. So far, so good, but the EAT accepted the Tribunal's finding that he acted "in bad faith" because his motive was solely to pursue a personal agenda to embarrass the company and not to perform health and safety functions.
This appears to leave a loophole for employers to exploit. Once Tribunals are permitted to explore the representative's motives in raising safety concerns, it is a short step to examining whether the concerns are justified. The approach taken in the Shillito case raises the worry that Tribunals will make the jump from concluding that safety concerns are not justified to deciding that they have not been raised in good faith, so the employee should be denied protection. This seems to bring in a test of reasonableness by the back door and undermine the absolute protection envisaged by the European Directive on which the legislation is based.
The rights to consultation when a business is sold
Keane & others v Clerical Medical Investment Group Ltd (Bristol Industrial Tribunal, 19/6/97) IDS Brief 595
The inadequacies of the Conservatives' legislation on consultation rights have been highlighted in previous issues (see Issue 1 of LELR: It's good to talk...and that's official). Labour is committed to reviewing the legislation (see LELR 11: Things can only get better). The court challenge brought by UNISON, GMB and NASUWT has been placed on hold pending that review. Government proposals are imminent. The Keane case demonstrates the need for reform.
When a business was sold, the employer consulted only with the Executive Committee of the Staff Association, who were required to sign a confidentiality agreement which prevented them from discussing the proposed sale with the employees affected. The employees were not told of the sale until the day it took place.
The individual employees brought a claim that the consultation did not comply with the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE). The Staff Association, perhaps not surprisingly, did not bring such a claim.
The Tribunal said that once there are representatives, only those representatives can bring a claim for a failure to consult: the individual employees cannot do so.
The Tribunal refer to the decision in the judicial review proceedings brought by UNISON, GMB and NASUWT, but do not appear to have taken fully on board the requirement deriving from that decision that representatives must be "appropriate" and that "appropriateness" must be judged objectively. This must involve looking at the function of the committee and purpose for which it was established. It is arguable that it should also address the composition of the committee, bearing in mind that none of the committee was employed in the part of the business transferred.
This decision highlights the fundamental flaw in the Regulations: there is no requirement that representatives be independent. There should be a requirement that representatives be free from domination or control by the employer. It is almost certain that such a requirement would mean that representatives who are prepared to sign a confidentiality agreement which prevents them from communicating with the employees they are supposed to represent would not be "independent" and the so-called consultation would not comply with the legal requirements.
A proper guarantee of independence must be a central part of the revised Regulations, plus proper sanctions where there has been a failure to consult.