Check Off Arrangements for Trade Unions
In this article our Partner, Paul Scholey examines Check Off Arrangements for Trade Unions by examining the case Cox -v-Secretary of State for the Home Department.
Cox -v- Secretary of State for the Home Department
In this case, the High Court had to consider the withdrawal by the Home Office of the historical ‘check-off’ arrangements that operated in relation to its employees who were Trade Union members.
Under a ‘Check-off’ arrangement, the Employer deducts Union subscriptions from an employee’s salary or wages at source (just like tax and national insurance), and pays those dues over directly to the Union(s) concerned.
The Home Office withdrew this facility in 2014 following government guidance that this was an ‘unnecessary service for Trade Unions’.
The High Court has held that this change represented a breach of the contracts of the staff concerned. The High Court took the view that the Check-off provisions created a contractual entitlement, a benefit to employees that the Employer was not entitled unilaterally to withdraw, save in very limited circumstances.
Interestingly, the Employer argued that by setting up alternative ways to pay their subscriptions after 2014 (e.g. direct debit) and continuing to work, the employees concerned had acquiesced in the change. The High Court disagreed. The High Court said that it would only infer acquiescence if the employee’s conduct was ‘unequivocal’. That might be a useful point to rely on in other cases where Employers seek to say that their employees have accepted unilaterally imposed changes.
In addition, the High Court held that the Union was entitled to bring a claim directly, even though the contractual entitlement belonged to the employees.
It may well be that this is a case confined to its own facts – since not every Check-off arrangement will necessarily be a contractual entitlement from the point of view of the employee’s concern. It might also in practice be of limited immediate practical impact, given that a very large proportion of employees will have set up other mechanisms to pay their subscriptions.
