Trade unions & whistleblowing

Trade unions & whistleblowing

overview

• Trade Unnion and Labour Relations (Consolidation) Act 1992

  • main legislation

• most protections arising from trade unions are day one rights

• protective award applied for not consulting trade union during redundancy

  • same name of award given for violating TUPE transfers

• a lot of companies will not recognise trade unions

TULCRA ss. 146 and 152

• protections - freedom of association

  • protection from dismissal and detriment

• automatically unfair to dismiss someone for a trade union reason

  • e.g, being a trade union member, joining/proposing to join, taking part/proposing to take part in union activies, and not joining/leaving a union.

ss.161-166 ERA 1996

interim relief protection from detriment

hearing within 7 days to establish a prima facie case

• Re-engagement if likely to succeed

• Enhanced compensation

• But only where people are dismissed for taking part in the activities of an independent trade union at an appropriate time

• Causing substantial inconvenience

s.137 TULCRA

refusing to access to employment due to TU status

• Unlawful to fail to recruit (or re-recruit) someone for a reason relation to their membership (or non-membership) of a trade union

  • Includes refusing to answer queries about a job; misleading people about vacancies; or offering job on poorer terms and conditions

Blacklists Regulations 2010

• Prohibition against compiling, using, selling or supplying any list which contains details of any person who is, or has been, a member of a trade union or who has taken part in trade union activities

• Complaint to ET where employment refused for a reason which relates to a blacklist

• Employment Relations Act 1999 (Blacklists) Regulations 2010

s.168 TULCRA

time off rights for trade union officials

accompanying rights

s.170 TULCRA

time off rights for union members

time off rights

often this is a right to paid time off

• there are 2 types of representatives

  • some members are also local officials, and will take on a role as a trade union official

  • full time union officials are different, they are employed directly by the union.

ss.1-6 TULCRA

rights only given to listed trade unions which can be found on the .gov website.

application must be made to certification officer

• organisation must be independent with the principal purpose to regulate employment relationship

independence requirement

• o be listed, a trade union must be independent

• a trade union is independent if it

  • is not under the domination or control of an employer or group of employers … and

  • is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control

rights of independent trade unions

• ight to appoint safety representatives

• Entitled to receive information for collective bargaining purposes

• Right to invoke the statutory recognition procedure prescribed in Schedule A1 to the TULRCA

• Right to be consulted in respect of redundancies and TUPE 

• Right to time off for trade union duties

• Employees cannot have action taken against them if they seek to join TU

collective agreements

• Agreement or arrangement made by or on behalf of one or more trade unions and one or more employers’ associations 

• Relating to terms and conditions, engagement and termination of employment

• Express or implied

s. 179(1) TULR(C)A 1992

collective agreements not legally enforceable unless expressly stated

incorporation of collective agreements

• Incorporation of terms of collective agreements into individual employment contracts:

  • Express incorporation

  • Implied incorporation

    • Intentions of parties to contract and aptness of incorporation of terms

    • Custom

    • Course of dealing between the parties

Trade Union Recognition

• “recognition”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining’

• and “collective bargaining” means negotiations relating to or connected with matters in collective agreements

• tends to be pay, sick pay and disciplinary procedures

voluntary recognition of trade union by employer

• recognise any union it pleases, even one with less support than another union present in the workplace

• change recognition arrangements 

• de-recognise

Schedule 1A TULCRA

compulsory recognition

• request from trade union to employer for recognition

• application to the Central Arbitration Committee (CAC) by trade union that has been refused recognition

• consideration of application by CAC – with reference to support that union has in bargaining unit 

• declaration by CAC that union is ‘recognised as entitled to conduct collective bargaining’

rights of recognised trade unions

• ACAS Code of Practice

  • Right to represent workers in ACAS proceedings and disciplinary 

• Right to facilities

  • Paid time off for officials

• Right to information for the purposes of collective bargaining

  • Without which TU would be materially impeded from CB 

  • In accordance with good IR practice

disclosure of information for collective bargaining

• ACAS code of practice

• Depends on the subject matter and size and type of company

• E.g. pay and benefits, conditions of service, manpower, performance, finance

• Exceptions, e.g. commercially sensitive information

• Claim to CAC for refusal

Information and Consultation: Influence of EU law

• Traditional UK system – trade unions and collective bargaining

• EU emphasis on Information and Consultation

• Issue-Specific rights 

  • Collective redundancies

  • Transfer of undertakings

General Framework for information and consultation (I&C)

• EWC – European Works Council

  • EWC Directive 1994/45, Recast 2010

  • Transnational Information and Consultation Regulations 1999 and Amendment 2010

  • Community scale undertakings

• I & C – Information and Consultation

  • Information and Consultation Directive 2002/14

  • Information and Consultation of Employees Regulations 2004

  • Large and medium sized organisations

  • Effective from April 2008 – minimum of 50 employees

specific rights to I&C

• Collective Redundancies

  • Directive 98/59/EC

  • Ss. 188-198 TULRCA 1992

• Transfer of Undertakings

  • Directive 2001/23/EC

  • Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)

Ss. 188-198 TULRCA 1992

collective redundancies

industrial action

• At common law trade unionists liable/trade unions vicariously liable for

• breach of contract

• delicts (economic torts) 

  • Inducing a breach of contract e.g. calling members out on strike

  • Causing economic loss by unlawful means

  • Conspiracy

  • Intimidation

• During unofficial strike action, where procedure not followed and workers walk out. They risk being dismissed by their employer, and this would be an automatically fair ground for dismissal. 

  • But the employer would have to dismiss all the staff who participated in the action.

golden formula of Industrial action

• Not delicts if committed in “contemplation or furtherance of a trade dispute”

• between workers and employer 

• which wholly or mainly relates to:

  • terms and conditions of employment

  • engagement or termination

  • allocation of work or duties

  • matters of discipline

  • facilities for TU officials and other TU matters

exceptions to industrial action rules

• Where there will still be legal liability even if in furtherance of a trade dispute

• Unlawful secondary action

• Action taken without correct ballot

• Action taken without proper notice to the employer

• Dispute regarding prohibited reasons

  • Closed shop, reinstatement, pressure

• Unlawful picketing

s.219 TULCRA

In order to benefit from the statutory immunities the union must:

1. give notice to employer of intention to hold an industrial action ballot

2. hold a ballot of its members 

3. give notice to employer of intention to take industrial action

remedies for industrial action

• Sue the union for damages

  • Interim interdict/injunction where there is a legal irregularity

  • Distinguish official and unofficial action

• Dismissal for unofficial industrial action automatically fair

 ss. 237-238A of TULR(C)A 1992

Dismissal for official action automatically unfair (up to 12 weeks) then potentially fair

ss. 146 of TULR(C)A 1992,

No protection for action short of dismissal (employer can deduct pay)

Secretary of State for Business & Trade v Mercer [2024] UKSC 12, [2024] 4 All ER 1

supreme court decision held that ss.146 (deductions of pay for industrial action) were incompatible with freedom of association in ECHR

Trade Union Act 2016

• Highly controversial changes to powers

• Many changes while going through Parliament

• Tighter rules on picketing, facility time, check-off 

• New powers to Certification Officer

• Repeal of ban on employers hiring agency workers to provide cover for strikes which came into effect July 2022, but reversed in July 2023

• Boris Johnson 

  • Current state - still not possible to bring in agency workers.

Trade Union Act 2016 - Balloting

• Minimum voter turnout is now 50% 

• Majority of those who voted is also necessary

• Additional minimum in important public services 

  • At least 40% of those entitled to vote must vote and support

• Employer must receive 14 days’ notice of industrial action

• Ballot mandate expires after 6 months

Important Public Services

• Health services. 

• Education of those aged under 17. 

• Fire services. 

• Transport services. 

• Decommissioning of nuclear installations and management of radioactive waste and spent fuel. To date no regulations have been made and so the 40% threshold does not yet apply to this sector.

• Border security.

• Strikes (Minimum Service Levels) Act 2023.

ss.43A – 43L in the Employment Rights Act 1996

protection introduced known as whistleblowing

• Protection from detriment and dismissal

• Applies to workers including agency workers

• There is no service qualification or cap on compensation

• Injury to feelings awards possible for detriment cases

s.128(1) of the Employment Rights Act 1996

Interim relief also available under

ERA s.43A

meaning of protected disclosures

Baluba v Waltham Forest College [2007] IRLR 346

protected disclosures

• Worker does not need to prove the existence of the state of affairs but has to show that they hold a reasonable belief. For example they do not have to prove that an offence was committed

• If the worker fails to show the grounds for their belief the employment tribunal may not hold their belief was reasonable

• The public interest requirement means that something in the worker’s personal interest may not be sufficient

Chesterton Global v Nurmohamed [2017] EWCA Civ 314

Factors in deciding if matter is in the public interest:

• Numbers in the group who are aware.

• Nature of the interest affected

• Nature of the wrongdoing disclosed

• The indentities of the alleged wrongdoer

• Very ambiguous, so use your own interpretation i guess.

s.43C ERA

Qualifying Disclosures to third parties

Bolton School v Evans [2006] IRLR 500

misconduct in whistleblowing

• School teacher hacked into the school’s computer system in order to demonstrate its poor security.

• He was disciplined for doing so.

• He then resigned and claimed constructive dismissal.

• His claim was rejected because he was found to have been disciplined not for making a disclosure but for committing an act of misconduct

Public Concern At Work - now called Protect

an independent organisation which provides anonimous lines for whistleblowers to make protected disclosures