We've seen two trade union-related decisions being handed down within a week of each other: Mercer v Alternative Future Group Ltd and Nexus v NURMT & Unite. For those employers with recognised trade unions the decisions are worth taking a closer look at.
Mercer v Alternative Future Group Ltd
Mercer is not good news for employers. In this case the Employment Appeal Tribunal held that taking steps to prepare for and take part in industrial action came within the scope of trade union activities.
Why is this relevant? It means that, whilst an employer can still withhold pay from striking workers, what it now can’t do, for example, is take disciplinary action or subject an employee to any other detriment short of dismissal for preparing for or taking part in industrial action.
Employers need to take extra care to ensure that any action proposed to be taken against an employee isn’t connected with that employee’s involvement in preparing for or joining industrial action.
Nexus v NURMT & Unite
The Nexus case involved the rectification (an equitable remedy) or correction of a collective agreement. The High Court held that even if a collective agreement is not legally binding (most voluntary agreements aren’t legally binding) it can be rectified if the written agreement doesn’t reflect the true intention of the parties at the point they entered into the agreement.
This is helpful, provided of course that the true intention at the time can be evidenced in some way. It’s therefore worth keeping the minutes of meetings in which a collective (or other) agreement is negotiated and concluded in case there’s a dispute later on about what the parties meant.