THE EMPLOYMENT ACT 2008: AN IER CRITIQUE AND GUIDE BY GEORGINA HIRSCH, JOHN USHER AND SHUBHA BANERJEE
Throughout this publication examples are given from Unite the Union. This is in no way intended to imply that other unions are not as active or effective in these issues; it is simply a reflection of the fact that this publication has been drafted by a team from Unite the Union. In addition to the individuals named below, grateful acknowledgement is given to Unite’s Research Department and the union’s solicitors who prepared training materials on the dispute resolution changes, extracts of which are quoted here without individual acknowledgement. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 978 1 906703 08 0 October 2009 published by the Institute of Employment Rights The People’s Centre, 50-54 Mount Pleasant,Liverpool, L3 5SD e-mail office@ier.org.uk www.ier.org.uk print and layout by Upstream (TU) 020 7207 1560 £6.50 for trade unions and students £20 others
Georgina Hirsch is Director of Legal Services for Unite the Union. Georgina’s work includes input on policy and lobbying on employment rights and related issues, as well as responsibility for member’s cases and ensuring that the union’s officers and reps have appropriate and up to date training on all significant developments, including the Employment Act. John Usher is Director of the United Campaign for the Repeal of Anti-Trade Union laws, and works closely with Unite the Union on a range of issues, including on the Employment Bill and using the agency work provisions to try to prevent agency scabbing during industrial action. John’s previous career included as Head of Legal Services for ASLEF during the Lee/ BNP troubles and litigation. Shubha Banerjee is in-house Solicitor for Unite the Union. Among other things, Shubha is running the union’s legal challenges to the contractors whose exclusion of UK workers gave rise to the walk-outs and the Lindsey oil refinery and elsewhere. Shubha’s work includes policy support as well as legal case work and legal educational materials.
The Employment Act 2008: an IER critique and guide by Georgina Hirsch, John Usher and Shubha Banerjee
The Employment Act 2008: an IER critique and guide
contents
ii
introduction – overview, missed opportunities
iv
part 1: dispute resolution
1
introduction disciplinary and grievance procedures and transitional provisions ACAS Code of Practice and Guide dismissal procedure grievances time limits and when to submit the claim right to be accompanied the Polkey Rule dismissals for anything other than misconduct or capability appeals where disciplinary action taken is short of dismissal collective grievances what about where the dismissal is also a grievance? changes to ET procedures and damages for loss mediation and conciliation conclusion
part 2: National Minimum Wage and regulation of agencies introduction the context of the UK work force employment status agency work National Minimum Wage original reasons for introduction of the NMW
2 5 7 8 9 10 11 12 13 14 14 15 15 17 19
21 22 24 24 27 28 29
changes introduced to the NMW by the Employment Act 2008 reasons for changes will the changes actually help in practice?
employment agencies and employment businesses changes under the 2008 Act information sharing
conclusion
part 3: The ‘ASLEF amendment’ and trade union autonomy introduction how did we get here? ASLEF v UK the government and parliament’s response to the ASLEF case The 2008 Act – what section 19 says “activities” conclusion
appendix 1 sample letter to agency supplying scab labour
30 32
34 35 36
36 38 40
40
43 44 45 47 50 53 57 58
60 60
endnotes
62
IER publications
65
The Employment Act 2008: an IER critique and guide
how the National Minimum Wage legislation works how well was the earlier legislation working?
iii
INTRODUCTION
The Employment Act 2008
The Employment Act 2008: an IER critique and guide
The Employment Act 2008 will probably be the last significant piece of employment legislation to be passed by the Labour government that succeeded the Conservative governments of Thatcher and Major. As such, it is a huge disappointment to the labour movement that the opportunity was not taken to clear away the anti-trade union laws passed by the Tories. Moreover where it does purport to change one aspect of such law – the prohibition on the freedom of trade unions to expel members on political party grounds – the change is effectively unworkable.
iv
The key demands of the union movement on the reform of trade union laws have been championed by a coalition of trade unions and individuals under the auspices of the United Campaign for the Repeal of the Anti-Trade Union Laws.1 Many of the demands were brought together in the Trade Union Rights and Freedoms Bill (supported by the TUC and drafted with the assistance of the Institute of Employment Rights). That Bill was raised as a Private Member’s Bill, but defeated by government manoeuvres. Trade unions, both individually and collectively (through TULO) lobbied vigorously to extend the terms of the government’s Employment Bill. From the start their expectations were managed by government saying that the proposed Bill was simply intended to be a ‘simplification’ Bill, and not intended as a conduit for major changes to the existing framework of law. The government did however acknowledge that changes to the law were required following the decision in the ASLEF v UK case.
The European Court of Human Rights judgement in ASLEF v UK (see chapter 4) attacked UK employment law for unlawfully hindering trade union autonomy; not purely on the issue of the right to exclude members on grounds of political party membership, but setting down principles which potentially have a far more wide reaching impact. The Employment Act addressed the issue in the narrowest of terms but failed to implement the broader principles and thereby leaves both scope and need for future strategic trade union litigation.2 The failure of a Labour government to properly implement the ASLEF v UK case (albeit due to the illogical and destructive interventions by Liberal and trade union peers in the House of Lords), does not bode well for statutory implementation of rights proclaimed by international courts. It is not disputed that any future Tory government will be even less enthusiastic to extend trade union rights, and is likely to try and curtail them further.
The ban on secondary action does not only prevent workers walking out in solidarity with workers in other companies on a matter of principle, but perniciously prevents workers taking solidarity action with colleagues who in reality work for the same company but under a structure where a parent company sets up lots of individual companies. They may look for all the world and for marketing and trading purposes as the same company, but for industrial action and insolvency purposes they are treated as unrelated. This provision means that even where there is a common issue across one employer, unions may have to hold literally hundreds of separate ballots due to there being hundreds of separate companies or entities (e.g. individual public bodies) relating back to the overarching de facto employer. While
The Employment Act 2008: an IER critique and guide
At the IER Conference on the Employment Act in April 2009, John Hendy QC opened with an eloquent description of what was left out of the Bill. John is a veteran of actions arising from the bureaucratic litany of procedural requirements demanded of trade unions in order for them to be able to take industrial action, without being sued (potentially to bankruptcy). In addition to the requirements for membership information and notices, John focused on the fact that the Bill did nothing to reform possibly the most damaging of the remaining restrictions on industrial action - the prohibition on “secondary action�.
v
an overall right to secondary action remains an important aim for the trade union movement, the need for ‘associated employers’ to be treated as one employer for balloting purposes must be the most urgent issue to be addressed in order to facilitate trade union freedom and thus their ability to respond to increasing monopolisation and globalisation of companies.
The Employment Act 2008: an IER critique and guide
Having briefly highlighted what is disappointingly not in the Employment Act 2008, this booklet will critically guide readers through the main provisions of the Act. To reflect the Act’s contents, the booklet is divided into three distinct sections – dispute resolution; the National Minimum Wage and Agency Workers; and finally a section looking at what has become known as the “ASLEF amendment”.
vi
part one:
The Employment Act 2008: an IER critique and guide
dispute resolution and the Employment Act 2008
1
WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989 and was granted charitable status in 1994. As a labour law “think tank”, supported by the trade union movement, our purpose is to provide research, ideas and detailed argument on all aspects of employment law. As a charity, however, we are not a campaigning organisation. The Institute has attracted wide and distinguished support creating a unique network of lawyers, academics and trade unionists. Among the membership are John Hendy QC, Professor Keith Ewing, Professor Aileen McColgan, Jim Mortimer, Tess Gill and the general secretaries of Britain’s largest trade unions. The results of our work are published in papers and booklets. We also provide short articles, free of legal jargon, for trade union journals and other publications. Dissemination of our ideas is increasingly achieved through seminars and conferences as well as our educational courses. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, we recognise that law has a part to play in influencing the employment relationship, both individually and collectively. Our funding is from various sources, including subscriptions, which entitle subscribers to a copy of all our new publications and reductions in conference fees. If you are interested in subscribing or would like to know more about the Institute, then contact us at The People’s Centre, 50-54 Mount Pleasant,Liverpool, L3 5SD or email us at office@ier.org.uk. Or visit our website at www. ier.org.uk
£6.50 TRADE UNIONS AND STUDENTS £20 OTHERS