Employment Law Update June 2022
June 2022 is a tale of two halves. On the one hand, another fantastic victory for trade unions in unlawful inducement cases. On the other, anti-union Government proposals to introduce legislation to limit the impact of strike action and punish trade unions much more severely for getting things wrong.
We’ll start with the bad news first from a union angle.
Industrial Action changes
On 24 June, the Government announced that it will introduce legislation to allow the supply of temporary workers to plug staffing gaps during industrial action.
As the law currently stands, there is a prohibition on employment businesses (i.e. agencies) supplying employers with temporary workers to perform the duties normally performed by those on strike or others that cover those duties. This will now be reversed, allowing an employer to seriously limit the impact of strike action by making it easier to engage replacement staff.
Business Secretary Kwasi Kwarteng said: “Once again trade unions are holding the country to ransom by grinding crucial public services and businesses to a halt. The situation we are in is not sustainable.
Repealing these 1970s-era restrictions will give businesses freedom to access fully skilled staff at speed, all while allowing people to get on with their lives uninterrupted to help keep the economy ticking.”
Transport Secretary Grant Shapps said:
“Reforms such as this legislation are vital and will ensure any future strikes will cause even less disruption and allow adaptable, flexible, fully skilled staff to continue working throughout.”
Sadly, the anti-union sentiment is clear for all to see.
The change will come into force in England, Scotland and Wales ‘in the coming weeks’.
The Government’s proposal also includes an increase to the caps on damages for unlawful industrial action. The caps vary depending on the union’s size and currently range from £10,000 (if the union has fewer than 5,000 members) to £250,000 (if 100,000 or more members).
For the biggest unions, the maximum award will now rise from £250,000 to £1 million.
INEOS v Jones
And now for some good news from a union perspective.
In Ineos Infrastructure Grangemouth Ltd v Jones, the EAT has upheld an Employment Tribunal’s decision that an employer’s imposition of a pay award, at a time when pay negotiations with the recognised trade union were at an impasse, amounted to an unlawful inducement under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992.
Unite the Union was recognised for collective bargaining. Pay negotiations took place between November 2016 and March 2017. Ineos initially proposed a pay rise of 2.3%, whereas Unite sought 3.25% plus enhancements to benefits. A ‘final and best’ offer of 2.8% was made, which Unite presented to members but did not recommend for acceptance and did not put to a vote. Members asked their union to seek an improved offer.
With that, Ineos decided it had no choice but to impose the pay offer, without agreement.
It also indicated that it would terminate the collective bargaining agreement with Unite in light of the ‘unsatisfactory’ way in which it had conducted the negotiations.
‘Unlawful inducement’ claims were therefore pursued under S.145B of the Trade Union and Labour Relations (Consolidation) Act 1992, which makes it unlawful for an employer to make an offer to union members where acceptance of the offer would have the ‘prohibited result’, namely that the employees’ terms and conditions would not or would no longer be determined by collective agreement.
The Tribunal decided that Ineos had made an offer and that it had the ‘prohibited result’ in that employees’ pay was determined by acceptance of the offer and not by collective bargaining. It also found that the sole or main purpose in making the offer was to bypass collective bargaining. Ineos appealed but the EAT dismissed it.
It found that the communication was a statement of intention to vary employees’ contracts as to pay, which was accepted by the employees continuing to work.
The Tribunal found that the offer breached section 145B.
It decided that at the final meeting, the parties were close to agreement such that an objective observer would regard it as more, rather than less, likely that agreement would have been achieved by further collective bargaining. On that basis, imposition of the pay offer was an unlawful inducement to bypass collective bargaining.
Source: Ineos Infrastructure Grangemouth Ltd v Jones and Others [2022] EAT 82 – GOV.UK
