Notwithstanding the coming into force of most of the provisions under the Trade Union Act 2016, which raise the bar in terms of the ability of Unions to lawfully take strike action, 2017 has seen some notable successes for the Trade Union movement.
One of the most publicised victories this year was Unison's successful challenge of the lawfulness of the Tribunal fee regime. The Supreme Court declared that the Fees Order 2013 was unlawful and must be quashed because it had the effect of preventing access to justice. As a result, the latest Tribunal quarterly statistics for the period July to September 2017 show that, since the same period in 2016, the number of claims lodged by single applicants have increased by 64%.
There have been a number of cases this year which have supported a Union's right to engage in collective bargaining.
In the case of Lidl v CAC and GMB, the Court of Appeal rejected Lidl's attempt to prevent the GMB Union from being recognised for collective bargaining at a warehouse in Bridgend. The Court of Appeal agreed with the CAC that a group of warehouse operatives constituting 1.2% of Lidl's total UK workforce was an appropriate bargaining unit. Lidl had tried to argue that the statutory test required the CAC to take into account 'the desirability of avoiding small fragmented bargaining units within an undertaking'. The Court of Appeal, however, held that the CAC had correctly applied the statutory test. Whilst it acknowledged that it was undesirable for an employer to have to negotiate with more than one union in respect of parts of their workforce that are not essentially different, that did not prevent a situation where one union is recognised in respect of only a small pool of employees and no union is recognised in respect of the remainder as was the case at Lidl.
The Court of Appeal has also considered the scope of collective bargaining in the case of British Airline Pilots' Association v Jet2.com Ltd, and in particular whether it extended to pilots' rostering arrangements. In this case, British Airline Pilots' Association (BALPA) gained statutory recognition to conduct collective bargaining on behalf of airline pilots including those employed by Jet2. This included negotiations on pay, hours and holidays. Jet2's rostering arrangements were operated in accordance with its Operations Manual and its Rostering and Crewing Policy (the Policy), which set out a system for allocating flying hours and time off, and ensuring an even distribution of work, adequate rest periods and fully crewed flights. The Policy was non-contractual and on this basis the airline argued it was not within the scope of the collective bargaining arrangements. BALPA brought a claim in the High Court on the basis that the Policy related to hours as it determined when the pilots would work their contractual hours and should therefore be subject to collective bargaining. The Court of Appeal agreed, stating there was nothing to suggest that statutory recognition only covers proposals which, if agreed upon, would give rise to individual contractual rights.
Building on this, the Employment Appeal Tribunal (EAT) in the case of Kostal UK v Dunkley has also upheld a decision to compensate employees who were members of Unite for the employer's beach of collective bargaining rules. This case related to the statutory restriction on employers to make an offer to employees where the sole or principal purpose in doing so is to circumvent collective bargaining arrangements by going 'over the heads of the Union'. Therefore, Kostal's attempt to persuade around 50 employees to agree to a new pay deal when pay negotiations with Unite broke down was held to be a breach of this restriction and resulted in a mandatory fixed award of £3,800 for each unlawful inducement offer, totalling £418,000.
Earlier in the year, the independent Pharmacists' Defence Association Union (PDAU) failed in its recognition application due to an existing deal with the Boots Pharmacists' Association (BPA), a non-independent trade union recognised by Boots, even though that existing deal did not cover holiday, pay or hours. However, it appears that PDAU may yet have the last laugh. In Parker v Boots Pharmacists' Association, the CAC has for the first time accepted an application by workers for statutory de-recognition, in this case an application to derecognise BPA. Whilst this is merely a preliminary decision on admissibility, the next stage being for the CAC to order a formal ballot on de-recognition unless the BPA agrees to be derecognised or the parties reach some other agreement, if the application against the BPA is ultimately successful resulting in the de-recognition of the BPA, this will surely open the door to a further recognition attempt by the PDAU.
Protection due to trade union membership
This year, the EAT has also considered the statutory provisions which offer protection to union members from being refused employment due to their trade union membership, and in particular whether the protection extends to union-related activities that are incidental to membership. In the case of Jet2.com Ltd v Denby the EAT held that 'membership' should be given a wide meaning to include the way in which membership is expressed. Therefore, a refusal to employ Mr Denby because of his earlier activities advocating for a greater role for BALPA in Jet2's workplace was a breach of the statutory protection. It did not matter that Mr Denby was no longer a member of BALPA at the date of refusal since he had been a member at the time he carried out the relevant activities, advocating and promoting BALPA's role in collective bargaining.
Finally, BALPA also had success this year in terms of ensuring the lawfulness of its proposed strike action. In Thomas Cook Airlines Ltd v British Airline Pilots Association the High Court considered the scope of BALPA's obligations to provide certain information on voting papers in a ballot for industrial action. The rules state that a voting paper in a ballot for industrial action 'must indicate the period ... within which the industrial action ... is expected to take place.' When BALPA balloted employees of Thomas Cook the voting paper stated: 'It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8th September 2017 to 18th February 2018.' Thomas Cook sought an interim injunction preventing strike action, asserting that the voting paper did not comply with the rules and that more specific information was required about when strike action would occur. However, the High Court accepted that the timing and intensity of industrial action is likely to be subject to change and held that the rules do not require a trade union to identify specific dates on which industrial action is to be taken but just the period within which it is expected to take place.
2018 and beyond
The Thomas Cook case is one of the first which considers the new strike rules and it will be interesting to see whether 2018 continues to bring such positive results for trade unions.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.