Statutory trade union recognition (2): individual rights

On the other hand, in the Government's view, "in most cases it will be unreasonable for a worker to breach his or her contract". This must be overstating the case, especially where the breach is minor, inadvertent or unintended. In principle, we would submit that unreasonable acts or omissions should be interpreted as covering more serious breaches of contract and, for example, violent or intimidatory conduct (whether physical or verbal) or harassment by a worker in the course of allegedly eliciting support for union recognition or derecognition. Short of this, the difficult question will be determining when (over-)enthusiasm or the forceful expression of views exceeds the bounds of "reasonableness".

It is in any event established under certain existing provisions that the manner in which individuals conduct themselves can remove them from protection altogether. Thus, in Ballinger v Viatel UK Ltd⁷, the EAT recently upheld an employment tribunal's decision that an employee was dismissed not because he had asserted a statutory right under s.104 of the ERA, but because of the way in which he had asserted it and the gratuitous rudeness used. This took the form of abusing the employer's e-mail policy and system by using offensive language within e-mails and by "copying in" senior managers.

DETRIMENTAL TREATMENT

The term "detriment" under para. 156(1) probably means no more than "putting [the worker] under a disadvantage" (see, for example, the sex discrimination case of Ministry of Defence v Jeremiah⁸), and may be caused by "any act, or any deliberate failure to act" by the employer.

Acts and omissions

This covers positive acts such as, for example, reprimands or disciplinary measures (including temporary transfer for the purposes of investigating a worker's conduct - see Barton v Wandsworth Council⁹) or the transfer of a worker to less satisfying work. It also clearly covers a failure or omission to consider an employee for a pay rise, overtime working, promotion or any other benefit (whether contractual or otherwise), or the denial of benefits, advantages or opportunities (including the opportunity to work) afforded to others.

Threats of detriment

Further, it is arguable that "detriment" includes the threat of a detriment. This would accord with the approach taken to the predecessor to the current provisions on detrimental treatment on grounds of trade union membership or activities (see above). There, for example, the threat of disciplinary action was held to amount to action taken against employees (see Grogan v British Railways Board¹⁰).

Indeed, during debates on the detrimental treatment provisions contained in the Public Interest Disclosure Act 1998 (see The Public Interest Disclosure Act 1998), which are similarly structured to the recognition provisions in this respect, the Government suggested¹¹: "The notion of detriment includes being threatened ... An employee ... could be threatened with relocation to a remote branch of a company . .. where promotion prospects are poorer. That kind of threat is a detriment and even though the worker can be assured that the employer could not lawfully carry out the threat, the fear of the threat may well amount to detrimental action. Any threat which puts a worker at a disadvantage constitutes in itself detrimental action."

Complaints and time limits

A worker may present a complaint to an employment tribunal on the ground "that [he or she] has been subjected to a detriment in contravention of [para. 156 of schedule A1]" (para. 156(5)). This is the sole remedy available to the worker in this regard (para. 156(6)).

Such a complaint must be made within three months of the date of the act or failure to act to which the complaint relates or, where that act or failure to act is part of a series of similar acts or failures, the last of them (para. 157(1)(a)). If the tribunal is of the opinion that it was not reasonably practicable for the worker to present a complaint within the three-month period, it may hear a complaint within such further period as it considers reasonable (para. 157(1)(b)).

Where an act extends over a period, the "date of the act" means the last day of that period, and a failure to act is to be treated as being done when it was decided on by an employer (para. 157(2)). In the absence of evidence to the contrary, an employer shall be taken to decide on a failure to act when it does an act which is inconsistent with doing the failed act or, if it has done no such inconsistent act, when the period expires within which it might reasonably have been expected to do the failed act if it was to be done (para. 157(3)).

The rather tortuous wording on failures to act means merely that if, for example, a worker claims that he or she was denied promotion on recognition-related grounds, the time limit runs either from the point at which the employer promotes another candidate, or from the expiry of the period within which the employer might reasonably have been expected to make an appointment.

Note: These detrimental treatment provisions have effect in relation to acts or failures to act which take place (that is, the date of the act or failure falls) on or after 6 June 2000¹².

Burden of proof

On a complaint alleging a breach of para. 156, the burden of proof is placed expressly on the employer to show, on the balance of probabilities, "the ground on which [it] acted or failed to act" (para. 158).

In line with similar detrimental treatment provisions in other areas, this probably means that the employer must show both the reasons for doing any act as may be proved to have caused detriment, and to show that such reasons did not form one of the recognition-related grounds (see Barton, considering the corresponding provision in s.48(2) of the ERA in relation to health and safety matters).

Remedies

Where a tribunal finds a complaint of detrimental treatment well founded, it must make a declaration and may award compensation to the worker in respect of the act or failure to act complained of (para. 159(1)).

Compensation will be an amount which the tribunal considers "just and equitable in all the circumstances" having regard to the infringement to which the complaint relates, and to any loss sustained which is attributable to the act or failure that infringed the worker's rights (para. 159(2)). This loss will include expenses reasonably incurred by the worker in consequence of the act or failure complained of, and the loss of any benefit which the worker might reasonably have expected to have had but for that act or failure (para.159(3)). It will also, presumably, cover injury to feelings (for example, for the stress engendered by the situation - see Brassington v Cauldon Wholesale Ltd¹³).

Reductions in compensation

In ascertaining the worker's loss, a tribunal will apply the same rule concerning the duty of a person to mitigate his or her loss as applies in common law damages claims (para. 159(4)). Where a tribunal finds that the act or failure complained of was to any extent caused or contributed to by any action of the worker, it has the discretion to reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding (para. 159(5)).

It has been suggested in relation to the parallel provision in the health and safety detrimental treatment regime that a reduction may be justified if it is shown that an employee's allegedly aggressive or confrontational manner "contributed substantially to what happened" (see again Barton). But it is unclear under the present regime how the provisions on reducing compensation on grounds of contributory conduct will interact with the provision which removes protection entirely from "unreasonable" acts or omissions by a worker (see above).

Level of compensation

Maximum compensation for detrimental treatment short of termination of contract or dismissal for all workers is theoretically unlimited.

However, para.160 of Schedule A1 provides that the compensation available where the detriment takes the form of the termination of the contract of a worker other than an employee cannot exceed the aggregate of:

UNFAIR DISMISSAL

An unfair dismissal (or unfair selection for redundancy) complaint by an employee based on paras. 161 or 162 of Schedule A1 must be brought in the normal way under Part X of the ERA. Mirroring the detrimental treatment provisions, the new protection applies where the effective date of termination of employment ("the EDT" - within the meaning of s.97 of the ERA) falls on or after 6 June 2000.

Burden of proof

The formal burden of proof in recognition-related unfair dismissal proceedings will differ depending upon whether or not the employee can establish one year's continuity of employment.

If the employee has been employed for one year or more, the normal burden of proof will apply. The employer will therefore have to show the reason, or principal reason, for dismissal, and that this was an admissible reason within s.98(1)(b) or (2) of the ERA. Where the employee alleges that the real or main reason for dismissal was recognition-related, the "evidential burden" passes to the employee to "produce some evidence that casts doubt on the employer's [stated] reason" (Maund v Penwith District Council¹⁴). Once that evidential burden is discharged, the onus remains with the employer to prove its alleged reason. It should be borne in mind that even if the employer ultimately discharges its burden and establishes an admissible non-recognition-related reason, this merely prevents a finding of automatically unfair dismissal. The tribunal will still have to consider the reasonableness of the dismissal under the general principles laid down in s.98(4) of the ERA.

An employee with less than one year's continuous employment will need to establish the jurisdiction of the tribunal to hear his or her complaint. The burden of proof will consequently rest with the employee to establish, on a balance of probabilities, that the reason, or main reason, for dismissal was one of those specified in s.161(2) of Schedule A1 (Smith v Hayle Town Council¹⁵, and see Tedeschi v Hosiden Besson Ltd¹⁶).

Remedies and interim relief

If an employee is successful in a recognition-related unfair dismissal complaint, the general unfair dismissal remedies - that is, reinstatement, re-engagement or monetary compensation (comprising a basic award, compensatory award and, where appropriate, an additional award) - will be available.

In addition, an employee alleging unfair dismissal on recognition-related grounds (within the meaning of para. 161(2) of Schedule A1) may apply for "interim relief" under s.128 of the ERA. Such an application must be made to an employment tribunal (at the latest) within the seven days immediately following the effective date of termination of employment (whether before, on or after that date) - s.128(1) of the ERA.

If it appears to the tribunal that the employee is "likely" to establish that the reason for his or her dismissal fell within para. 161(2), the tribunal may, if the employer is willing, order the reinstatement or re-engagement of the employee pending the final determination or settlement of the complaint. Re-engagement means re-employment in another job on terms and conditions "not less favourable" than those that would have applied had the employee not been dismissed, with continuity of employment being maintained for the purposes of seniority, pension rights and "other similar rights" (see s.129(3)and (4) of the ERA).

Where, however, the employer fails to attend the hearing of the application for interim relief, or states that it is unwilling to reinstate or re-engage the employee, the tribunal must make an order for the continuation of the contract of employment from the date of termination until the date of determination or settlement. In the case of a re-engagement order, the tribunal must ask the employee if he or she is willing to accept the job on the terms specified by the employer. Where the employee refuses the job offered, the tribunal will order continuation of the contract only if it is of the opinion that the employee's refusal is reasonable (see s.129(6)-(9)).

An order for the continuation of contract is an order that the contract of employment remains in force "for the purposes of pay or of any other benefit derived from the employment, seniority, pension rights and other similar matters", and for the purpose of determining the employee's continuity of employment (see s.130(1) of the ERA).

Note: Conciliation by the Advisory, Conciliation and Arbitration Service is available in respect of both unfair dismissal complaints by employees and detrimental treatment claims by all workers¹⁷.

MISCELLANEOUS MATTERS

A number of other matters potentially affecting the legal position of individual employees or workers may arise out of the operation of the statutory recognition regime. The most practically important of these are considered below.

Time off and access

In part one of this series, we summarised the provisions of the Code of Practice on access to workers during recognition and derecognition ballots ("the Code" - see Statutory trade union recognition (1): basic procedure).

Paragraph 32 thereof states that employers "should ensure that workers who attend a meeting or a 'surgery' organised by the union[s] with his agreement, should be paid, in full, for the duration of their absence from work [provided that the worker would otherwise have been at work]". Similarly, says the Code, if the union wishes one of the employer's workers to conduct a "surgery", "the employer should normally give time off with pay to the worker concerned ... Exceptionally, it may be reasonable for the employer to refuse time off" (see para. 33).

The problem that arises is in identifying any legal and enforceable right (statutory or otherwise) vested in "workers" as a category that supports these statements. It might be thought that an employee who is a lay union official (elected or appointed in accordance with union rules) and who conducts a meeting or workshop would glean some protection from the existing right to reasonable (paid) time off for trade union duties under s.168 of the TULR(C)A. Even here, however, his or her locus standi is dependent on the union already being recognised by the employer. Similarly, only employees who are members of a union that is so recognised have the statutory right to reasonable unpaid time off to take part in union activities (s.170 of the TULR(C)A). Workers more broadly defined are covered by neither of these provisions.

On the face of it, therefore, there seems to be no direct route by which an individual employee, let alone a worker, can challenge an employer's failure to permit the paid or unpaid time off recommended by the Code. Indeed, it is unlikely that such direct enforcement is intended. Compliance with the Code forms part of the employer's general duty to cooperate with a union (or unions) "in connection with [a recognition] ballot", and its specific duty in relation to permitting union(s) reasonable access to the workforce in the bargaining unit in question. Failures to comply with those duties may ultimately lead to a declaration of recognition, but no other sanction is envisaged (see Statutory trade union recognition (1): basic procedure).

Conduct of specified method

Similar problems arise in relation to statements contained in the Secretary of State's model specified method of collective bargaining ("the model method" - see Statutory trade union recognition (1): basic procedure). If they are employed by the employer, the model method states that union members of the joint negotiating body ("JNB") must be given paid time off by the employer to attend:

The model method also provides that "the employer shall agree to the union's [or unions'] request to hold meetings with members of the bargaining unit on company premises to discuss the step 1 claim, the employer's offer or revisions to either ... Where such meetings are to be held in working time, the employer is under no obligation to pay individuals for the time off" (para.23). Further, the model method asserts: "In respect of issues not otherwise specified in this method, the employer and the union must have regard to the guidance in the ACAS Code of Practice on time off for trade union duties and activities¹⁸ and ensure that there is no unwarranted or unjustified failure to abide by it" (para. 26).

Again, it is unclear how these assertions fit with existing statutory time off rights. It would seem that, since the union(s) will by this stage be statutorily recognised, employee JNB members who are union officials within the meaning of s.168 of the TULR(C)A will have a right to paid time off, and employee union members a right to unpaid time off. With regard to the former, it is submitted that the provision in para. 21 does not define or limit the extent of reasonable paid time off. Indeed, the preamble to the model method itself acknowledges that its imposition (or the imposition of a CAC variation thereof) does not affect an individual's statutory entitlement to time off (see further below).

None of this, however, seems to provide any solace to workers other than employees. Nevertheless, the model method itself takes effect as if it were contained in a legally enforceable contract between the union(s) and the employer, which may be enforced in the courts solely by way of an order for specific performance. This is one way of ensuring that an employer permits time off in accordance with the model method for the future, but will not necessarily protect workers who have been denied such time off or who are not paid.

But the fact that specific performance is stipulated to be the only remedy available for breach of the model method as such (or any CAC variation thereof - see para. 31(6) of Schedule A1), does not necessarily have the effect of limiting the scope for arguing that certain of its (admittedly procedural) terms might be "appropriate" for express or implied incorporation into individual workers' contracts (of employment or otherwise) on normal principles (in the manner of certain of the terms of ordinary collective agreements).

Rights otherwise unaffected?

This analysis gains some support from the following assertion in the preamble to the model method: "The fact that the CAC has imposed a [collective] bargaining method does not affect the rights of individual workers under either statute or their contracts of employment. For example, it does not prevent or limit the rights of individual workers to discuss, negotiate or agree with their employer terms of their contract of employment [or other contract], which differ from the terms of any collective agreement into which the employer and the union may enter as a result of collective bargaining conducted by this method."

References

¹ The definition of "worker" contained in s.296(1) of the TULR(C)A applies for all purposes under Schedule A1. It thus covers individuals who work, or normally seek work, under: "a contract of employment" or apprenticeship (that is, "employees" traditionally and narrowly defined); or "any other contract" whereby the worker "undertakes to do or perform personally any work or services for another party who is not a professional client" of his or hers. It also covers those "in employment under or for the purposes of a government department" (otherwise as a member of the armed forces) in so far as the employment does not fall under the other limbs of s.296(1). References in Part VIII of Schedule A1 to a worker's contract are to the contracts mentioned in s.296(1) or "the arrangements for the [government] employment" otherwise referred to.

² Available from the Stationery Office, price £11.30.

³ [1976] IRLR 215.

⁴ [1978] IRLR 385.

⁵ [1983] IRLR 78.

⁶ See Lord McIntosh of Haringey, House of Lords Report Stage of the 1999 Act, Hansard(HL), 8.7.99, col. 1072.

⁷ 15.3.99 EAT 1323/98.

⁸ [1979] IRLR 436.

⁹ 12.7.95 COIT 11268/95.

¹⁰ 17.1.78 EAT 505/77.

¹¹ See Lord Haskel, House of Lords Committee Stage of the relevant Act, Hansard (HL), 5.6.98, col. 616.

¹² See The Employment Relations Act (Commencement No.6 and Transitional Provisions) Order 1999, SI No.1338 (C.39).

¹³ [1977] IRLR 479.

¹⁴ [1984] IRLR 24.

¹⁵ [1978] IRLR 413.

¹⁶ 16.10.96 EAT 959/95.

¹⁷ On the latter, see The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2000 (SI No.1337). This Order also ensures that the ACAS conciliation provisions apply to complaints in relation to the employer's duty to consult statutorily recognised unions over training (see Statutory trade union recognition (1): basic procedure ), and cures a legislative oversight which originally excluded employees' complaints about the postponement or prevention of parental leave under s.80(1) of the ERA from conciliation.

¹⁸ 1998.

The specified protected grounds

Paragraphs 156(2) and 161(2) of Schedule A1 of the TULR(C)A provide for protection against detriment or dismissal where:

(a)the worker acted with a view to obtaining or preventing recognition of a union (or unions) by the employer under Schedule A1;

(b)the worker indicated that he supported or did not support recognition of a union (or unions) by the employer under Schedule A1;

(c)the worker acted with a view to securing or preventing the ending under Schedule A1 of bargaining arrangements;

(d)the worker indicated that he supported or did not support the ending under Schedule A1 of bargaining arrangements;

(e)the worker influenced or sought to influence the way in which votes were to be cast by other workers in a ballot arranged under Schedule A1;

(f)the worker influenced or sought to influence other workers to vote or to abstain from voting in such a ballot;

(g)the worker voted in such a ballot;

(h)the worker proposed to do, failed to do, or proposed to decline to do, any of the things referred to in (a) to (g) above.