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On 27 July 1999 the Employment Relations Act,
the Fairness at Work legislation, became law. The Act is the most significant
legislative advance for working people and their trade unions for more than 20
years. It shifts the balance of legal rights at the workplace.
EMPLOYMENT RELATIONS ACT 1999
is it in force?
Some provisions were brought into force in September
1999: those relating to regulation-making powers (section 42), powers relating
to transfers of undertaking (section 38) and protection against dismissal of
fixed-term contract workers for pregnancy or asserting a statutory right.
A significant number of provisions and regulation
-making powers were brought into force on 25 October 1999, including the
increase in the Ifinit for unfair dismissal compensatory award. Index-linking
and increased limits for other awards were brought into force from 1 February
2000.
Where provisions have been brought into force, this
is highlighted in the text below.
The government has not confirmed implementation dates
for the rest of the legislation. Some of it will
require further regulations. Other parts derive from
European obligations and must be implemented by particular dates. We shall
publish details of the timetable separately.
There are 123 pages to the Act, with 47 sections and 9
schedules. The government says its proposals introduce 46 new rights. Here, we
summarise the main provisions of the Act on trade unions and individual rights.
There are separate leaflets on recognition and family friendly lights.
TRADE UNIONS AND INDIVIDUAL RIGHTS Detriment and
trade union membership (Section 2 and Schedule 2)
IN FORCE: 25 October 1999
Trade union members will now be protected against
"being subjected to any detriment" to penalise them for trade union membership
or activities, instead of protection against "action short of dismissal taken
against him as an individual". The legislation now gives workers protection
against an employer's deliberate failure to act, for example by withholding
benefits which are available to non-unionists.
Detriment and collective bargaining
(Section 17)
The Government will have the power to make Regulations
to protect workers against dismissal or detriment for refusing to enter into
personal contracts and thus give tip the benefits of collective bargaining.
This is directed at the effect of the amendments introduced by the
Conservatives after the Wilson and Palmer case in the Appeal Court, but the
Government has decided not to repeal those amendments. This will
restrict the effectiveness of any regulations.
A Conservative amendment which the Government accepted
has greatly undermined the protection any regulations can give. The amendment
says that paying extra pay or a bonus to those who give up collective
bargaining does not amount to a detriment for those who refuse to give up their
rights. The only restriction to the amendment is that the contract of
employment must not inhibit the workers from being a union member and the extra
pay or bonus must relate to services provided under the contract. These
provisions mean that if Regulations are passed, they may make matters worse for
trade union members.
Detriment and recognition
(Section 6 and schedule I paragraphs 156 - 165)
Workers will be protected against dismissal or
detriment for campaigning or voting for or against recognition under the new
trade union recognition procedure. The contract of employment cannot override
these rights, but the protection is confined to cases where the worker did not
act unreasonably.
The legislation gives workers a right to make an
emergency application for interim relief if dismissed on those grounds,
adopting the same procedure as for dismissals on trade union grounds. Workers
are also given protection against selection for redundancy on recognition
grounds.
Blacklists
(Section 3)
IN FORCE - Power to make Regulations -
25 October 1999
The Act grants the power to make Regulations to
prohibit the compilation of lists of trade union members and activists for use
by employers and employment agencies to discriminate against workers in
recruitment or other treatment. This is intended to outlaw so-called
"blacklists" of the type previously operated by the Economic League.
The sanctions may include criminal penalties or
remedies for trade union members in the courts or tribunals.
TRADE UNIONS, MEMBERS AND INDUSTRIAL ACTION
Support of Ballot
(Schedule 3)
Industrial action will not be treated as having the
support of a ballot if a member is induced to take part in the action, but has
not been given the opportunity to vote in the ballot (and the Union ought
reasonably to have known that the member would be induced to take part).
Small accidental failures to comply with the
requirements to ballot all members who are to take part in the action, and the
requirements relating to postal voting arrangements, will not invalidate the
ballot. This
is provided that no "missed" members are actually
called upon to take part in the action. (Similar provisions apply in respect of
small accidental failures to comply -with the requirements relating to the
balloting of seamen).
Notices relating to industrial action
The obligation on unions to provide employers with the
names of individuals to be balloted or called upon to take part in industrial
action is removed. A union will now be obliged to provide "such information in
the union’s possession as would help the employer to make plans and bring
information to the attention of those” employees to be balloted. This
expressly does not require the union to provide names of individuals, but does
require information on the number, category or workplace of the employees
concerned where this information is in the union's possession.
Previously, where a union ended authorisation for
industrial action, and then subsequently re-authorised the action, it had to
give a fresh notice of industrial action to relevant employers before the
action could resume. That requirement is now disapplied where the union and the
employer agree that industrial action will cease to be authorised from a
certain date, but that it will again be re-authorised with effect from a date
set out in the agreement, provided that the action is actually re-authorised.
Voting Paper
There has been some confusion after the decision of
the Court of Appeal in Connex South Eastern Ltd -v- RMT, where an overtime ban
was found to amount to strike action, rather than action short of strike. That
decision is reversed: an overtime ban and a call-out ban will constitute action
short of strike.
As a result of changes to the law relating to the
dismissal of striking workers (see below), the following additional words must
be inserted on the voting paper after the warning about being in breach of
contract: "However, if you are dismissed for taking part in a strike or other
industrial action which is called officially, and is otherwise legal, the
dismissal will be unfair it is takes place fewer than eight weeks after you
started taking part in the action, and depending on the circumstances, may be
unfair if it takes place later".
Industrial action ballots: period of effectiveness
The Conservative legislation required unions to
commence industrial action, within four weeks of the close of ballot for the
union to retain protection against legal action by the employer. It will now be
possible for this period to be extended to eight weeks by agreement between the
union and the employer. In a multi employer dispute, each employer would be
treated separately.
Separate Workplace Ballots
It has often been all but impossible to untangle the
complex requirements of separate workplace ballots. This has led to enormous
confusion for unions and employers alike. The circumstances in which separate
workplace ballots are required are to be simplified.
As previously, the separate workplace ballot
provisions do not apply if the union reasonably believes that all members
entitled to vote have the same workplace.
"Workplace" is defined as either the premises at or
from which the worker works (in the case of a worker working at or from a
single set of premises); or the premises with which the worker's employment has
the closest connection.
There are three circumstances in which separate
workplace ballots will not be required, even if workers entitled to vote in the
ballot do not all have a common workplace.
· First, no
separate workplace ballots are required where there is at least one member of
the union who is "affected" by the dispute at the workplace of each member
entitled to vote.
Union members are "affected" by a dispute if they are:
- directly affected by decisions relating to terms
and conditions or physical working conditions, to engagement or non-engagement
or termination or suspension of employment or duties of employment, or to
allocation of work or duties; or
- if they are directly affected by matters of
discipline; or
- if their membership is in dispute; or
- if they are officials of the union who would use
any negotiating machinery which is the subject of the dispute.
· Secondly, a
single ballot may be held in relation to a dispute where the workers have one
or a number of common occupations, regardless of whether or not they are
employed by one or a number of employers.
· Thirdly, a
single ballot may be held where entitlement to vote is restricted to all the
members of the union employed by a particular employer (or employers).
Industrial action and unfair dismissal
(Section 16 and Schedule 5)
Workers who are dismissed whilst taking part in lawful
industrial action are currently denied legal redress unless not all of them are
dismissed or there is selective re-engagement within three months.
Under the new law, it is automatically unfair to
dismiss an employee for taking part in industrial action in certain
circumstances. This protection will apply
- where the dismissal takes place within the first
eight weeks of the action;
- where the employee stopped taking action within
eight weeks (even if the dismissal took place after eight weeks); and in any
case
- where the employer has not taken reasonable
procedural steps for the purpose of resolving the dispute.
In deciding whether an employer has taken reasonable
procedural steps to resolve the dispute the following will be taken into
account:
- whether the employer or a union has complied with
any collective or other agreement;
- whether the employer or a union has offered or
agreed to take part in negotiations after the start of the action;
- whether the employer or a union has unreasonably
refused, after the start of the action, a request for conciliation;
- whether the employer or a union, after the start of
the action, has unreasonably refused a request that mediation be used to
resolve the dispute. No account is to be taken of the merits of the dispute.
Where a worker is unfairly dismissed under the new
provisions, no order for reinstatement or re-engagement
can be made until after all employees have ceased
taking part in lawful industrial action relating to the dispute.
These rights only apply where the industrial action is
lawful and protected by a ballot which complies with the existing legislation.
Where action is repudiated by the union, the protection for the workers is lost
if they carry on with the action for more than one further day.
TRAINING Information and consultation on training
(Section 5)
The Government has decided not to include training
within the ambit of statutory recognition.
Instead, where a union has statutory recognition, the
employer must invite the union to send representatives to a meeting. The
purpose of the meeting is to consult about the employer's policy on training,
plans for training during the next six months and reporting on training since
the last meeting. This relates only to training of workers in the bargaining
unit.
The meetings must take place every six months. The
employer must provide relevant information at least two weeks in advance. The
employer must take account of representations made by the union. The remedy for
a failure to comply with the obligations is an application by the union to an
Employment Tribunal for a protective award of tip to two weeks' pay. |
INDIVIDUAL RIGHTS Rights to be accompanied on
disciplinary and grievance hearings
(Sections 10 - 15)
Workers are given an important new right to be
accompanied on disciplinary or grievance hearings. This applies to workers
whose employers have disciplinary or grievance procedures which provide for a
hearing: employers who do not have procedures are not compelled to adopt them.
The right does not apply to employees of the security services or GCHQ.
The right is to be accompanied by a "companion" of the
worker's choice who may be a colleague or a trade union official. The trade
union official may either be employed by the union or be a lay official who the
union has certified has experience or training in representation at
disciplinary or grievance hearings.
The companion is permitted to confer with the worker
during the hearing and to address the hearing (but not to answer questions on
the on the worker's behalf). Rights of time off are given to act as a
companion.
The right only applies where the worker "reasonably
requests" to be accompanied. The worker is entitled to a postponement of up to
five working days so that the companion can attend.
The right on grievance is confined to circumstances
where the grievance concerns "the performance of a duty by the employer in
relation to a worker" A disciplinary hearing is one which may lead to a warning
or other sanction and is defined in such a way as to include an appeal and
probably an investigatory hearing.
The remedy for a breach is compensation of up to two
weeks' pay. The statutory limit on the week's pay applies. Workers and those
acting as companions are protected against dismissal or detriment for
exercising their rights under this section. A worker who is dismissed for this
reason has a right to make an emergency application to the Tribunal for interim
relief. Workers cannot contract out of their right to be accompanied.
Fixed term contracts
(Section 18)
IN FORCE - 25 October 1999
Employees on fixed term contracts will no longer be
able to sign away their rights to claim unfair dismissal when the term of their
contract expires. If the contract expires and is not renewed they will be able
to claim unfair dismissal on the same basis as other workers.
Employers can still require workers to sign away their
right to receive a redundancy payment when their contract expires. However, for
such an agreement to be valid, there has to be a fixed term contract for a
period of two years or more.
If in employee who has a current fixed term contract
is dismissed for asserting her/his rights to the national minimum wage or other
statutory rights or because she is pregnant then an unfair dismissal complaint
can be pursued.
Only those contracts which were signed, extended or
renewed before 25th October 1999 and where the
waiver was signed before that date will validly
exclude unfair dismissal rights.
Extending employment rights
(Section 23)
IN FORCE - Power to make Regulations -
25 October 1999
The Government has extended employment rights. The
National Minimum Wage Act and the Working Time Regulations already extend to
"workers", which is a broader category than employees. This broader category
includes casual workers, freelancers and contract workers: indeed, all those
who contract to provide their services personally unless they are doing so as a
trade or profession to a customer or client. There are also specific provisions
protecting agency workers and, in the case of minimum wage, homeworkers.
This progressive approach is evident in the new Act.
The right to be accompanied on discipline and grievance extends to all workers
(Sections 10 -15, see below) and the Government has taken the power to make
Regulations to extend some or all employment rights to the wider category of
workers.
Unfair dismissal: qualifying period and
compensation
(Sections 33 - 37) IN FORCE - 25 October 19,99
The Government has already reduced the qualifying
period for unfair dismissal protection from two years' continuous service to
one year for all dismissals on or after I June 1999.
The proposal to remove the cap on unfair dismissal
compensation has been dropped, but the maximum compensatory award has been
increased from £12,000 £50,OOO for all dismissals on or
after 25 October 1999. The maximum limit is removed altogether from
dismissals for health and safety activities or whistleblowing.
The limits in the legislation on week"s pay, basic
award for unfair dismissal, guarantee payments and right to trade union
membership will be automatically increased in line with inflation in future
years.
The current system of additional and special awards in
dismissals for trade union, health and safety, pension trustees or employee
representatives dismissals is replaced with a single "additional award of
between 26 and 52 weeks' pay.
Employment outside Britain
(Section 32)
IN FORCE - 25 October 1999
Employees ordinarily working, outside Britain are now
covered by the laws on collective redundancy consultation and are no longer
excluded from employment rights such as claiming unfair dismissal and a written
statement of employment particulars.
National security
(Section 41 and Schedule 8)
In a significant move, workers engaged in jobs
involving national security are now covered by statutory employment rights,
except rights under the whistleblowing legislation - the Public Interest
Disclosure Act. Employment Tribunals are still entitled to dismiss claims for
unfair dismissal or trade union victimisation where the action against the
employee was taken to safeguard national security. Proceedings may be held in
private.
School staff
(Section 40)
IN FORCE - 25 October 1999
The qualifying period for unfair dismissal in the
School Standards and Framework Act 1998 is brought into line with the new one
year period.
Transfers of undertaking
(Section 38)
IN FORCE - Power to make Regulations -
9 September 1999
The government gives itself power to go beyond the
Acquired Rights Directive and provide that particular transfers or types of
transfers are to be treated as covered by TUPE even where, the Directive would
not apply.
This gives the government the power to treat
particular public sector transfers as TUPE transfers and to bring forward
amendments to the existing TUPE Regulations which cover situations which may
not fall within the Directive and thus end some of the confusion over
contracting out.
This provision is already in force and has been used
for at least one public sector transfer. The consultation document on
amendments to TUPE is expected in spring 2000.
PART-TIME WORKERS The Part-Time Workers Directive
(Sections 19-21)
IN FORCE - Power to make Regulations -
25 October 1999
The legislation gives the Government regulation-making
power to implement the EU Directive on Part-Time Work, deriving from the
Framework Agreement reached by unions and employers at European level.
The powers enable the Government to ensure that part
time workers are not treated less favourably than persons in full-time
employment, including on issues of pay which arguably falls outside the ambit
of the Directive itself. The Government can also create criminal offences in
relation to instances of discrimination.
Issues such as definitions and provisions on
enforcement are left to the Regulations and the Government proposes to issue
codes of practice on combating discrimination against part-time workers and
promoting part-time work.
OTHER PROVISIONS National Minimum Wage
(Sections 22 and 34)
IN FORCE - 25 October 1999
The Government has added to the categories of persons
excluded from entitlement to the National Minimum Wage Members of religious or
charitable committees (excluding independent schools or further education
establishments will not be entitled to the National Minimum Wage.
Tax and National Insurance contributions information
obtained by the Inland Revenue can be used for the enforcement of the National
Minimum Wage.
Central Arbitration Committee (Section 24 .
25)
The CAC will have an important role in the new
legislation and the Bill sets out the new functions, the provisions for
nominating members and the way in which proceedings before the CAC will be
organised
Provisions relating to ACAS and the CAC
(Sections 26 - 27)
IN FORCE - 25 October 1999
ACAS's general duty is amended to give equal weight to
dispute resolution and dispute prevention work. The timetable for ACAS and CAC
annual reports is brought into line.
CROTUM and CPAUIA
(Section 28)
IN FORCE - 25 October 1999
The Commissioner for the Rights of Trade Union Members
and the Commissioner for Protection Against Unlawful Industrial Action will be
abolished, thereby ending a waste of public money
Certification Officer
(Section 29 and Schedule 6)
IN FORCE - 25 October 1999
The Certification Officer is given new powers and
people are prevented from issuing court proceedings in parallel with an
application to the Certification Officer. The Certification Officer is given
powers to deal with vexatious litigants.
Partnerships at Work
(Section 30)
IN FORCE - 25 October 1999
The Government may make money available, for training
and other activities to develop partnerships at work
Employment Agencies
(Section 31 and Schedule 7)
IN FORCE - Power to make Regulations -
25 October 1999
The Act amends the Employment Agencies Act 1973,
particularly in relation to enforcement. |
