It has become clear that flexibility is currency in the new working world and legal frameworks are evolving to catch up with the changing working culture. Four-day work-weeks, flexible working arrangements and the right to disconnect are all on offer to employees, giving the opportunity for better work-life balance, and giving employers a competitive edge in talent retention.
Welcome to this edition of the “UK: Working with Unions” bulletin designed to keep you updated with key cases and legal developments affecting trade unions and employee representative bodies. This bulletin includes two decisions of the Court of Appeal: (i) on whether the Central Arbitration Committee has jurisdiction to hear complaints post Brexit where the European Works Council’s central management is situated in the UK, and (ii) on whether collective redundancies need a common rationale to constitute a transnational matter requiring consultation with the EWC. This bulletin also covers the successful judicial review challenge against regulations introduced in July 2022 to allow employment businesses to supply workers to cover the duties of those taking part in industrial action, and the Strikes (Minimum Service Levels) Act, which has recently received Royal Assent following much discussion and commentary.
In July 2022, the law changed to allow employment businesses to supply workers to cover the duties of those taking part in official industrial action. Previously, it had been a criminal offence to do so. Following a successful judicial review challenge brought by unions, that law has been quashed. It is once again a criminal offence to supply agency workers to cover the duties of workers on an official strike, or to supply agency workers to cover the duties of other workers reassigned to cover striking workers.
This bulletin covers the period of October 2022 to March 2023 and includes a decision of the Central Arbitration Committee (CAC) on the limitation period for bringing a Regulation 20 claim under the Transnational Information and Consultation of Employees Regulations 1999 and two interesting Employment Appeal Tribunal decisions considering: (i) whether the CAC has jurisdiction to hear complaints post Brexit where central management is situated in the UK, and (ii) whether the duty to inform and consult arises where collective redundancies are happening in multiple European Economic Area states but there is no common rationale for the redundancies.
After a long period in which the UK government has promised several employment law changes contained in an Employment Bill without bringing forward such a Bill, it has now announced it is supporting certain private members’ bills which include developments in these areas. These include expanding the right to request flexible working, a new right to request more predictable working conditions, a number of changes to family leave entitlements, and protection for those facing harassment by third parties such as customers at work.
The Court of Appeal has confirmed that an Acas-negotiated COT3 settlement agreement covered an individual’s claim that his former employer had knowingly helped a subsidiary unlawfully victimize him when the subsidiary rejected his job application. This situation was covered by the COT3’s express terms settling claims that indirectly arose in connection with his employment.
2022 has seen further case law on the issue of the potential conflict between expressions of gender-critical beliefs in the workplace and proponents of gender identity. There are currently four main cases in this sphere: Forstater v. CGD Europe; Mackereth v. DWP; Higgs v. Farmor’s School; and Bailey v. Garden Court Chambers and Stonewall. There have been decisions in all four cases during 2022.
This edition of the “Working with Unions” bulletin covers the period of April to September 2022 and includes: (i) the decision of the Employment Appeal Tribunal in INEOS Infrastructure Grangemouth Limited v Jones & Others and INEOS Chemicals Grangemouth Limited v Arnott & Others, clarifying the scope of the unlawful inducements in collective bargaining provisions under section 145B of the Trade Unions and Labour Relations (Consolidation) Act following last year’s Supreme Court decision of Kostal v Dunkley, and (ii) the Court of Appeal’s decision in USDAW and others v Tesco Stores Ltd which reversed the High Court’s decision to grant an injunction preventing the employer from dismissal and reengagement.
Following the government’s recent announcement, Parliament has approved the removal of the prohibition on businesses using temporary workers to cover staff taking part in industrial action and increased the maximum amount of damages that a court can award against a trade union for unlawful strike action. These changes became effective on 21 July 2022.