WORKPLACE
report
No. 71 July 2009
Health and safety
Round-up of the year’s changes, including climate law
London Weighting Has London Weighting suffered in the downturn?
Law at work
Transfers, dismissals and redundancy
Health and safety
Gangmaster legislation for construction
Bargaining news
Tesco pay and works council
Equality
Negotiating for LGB workers
Learning and training NEET statistics
Recruitment and organisation New Acas code of practice
Europe
Parental leave agreement
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The Labour Research Department monthly for union reps and negotiators
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Pay and prices Labour Research Department three-monthly pay figures
CPI inflation below 2%
Inflation as measured by the Retail Prices Index (RPI) remained in negative territory for the fourth month in a row. For the year to June the RPI was minus 1.6%. Pay settlements as recorded by the LRD Payline database had a median (mid-point) increase for the three months to June of 2.3%; within this, increases ranged from 2.0% in the private sector to 2.5% in the public sector and from 2.0% in manufacturing to 2.8% in services. Notably, the Consumer Prices Index (CPI) dropped to 1.8% and RPIX (which excludes mortgage interest payments) fell to 1.0% in the year to June. The number of unemployed people, the unemployment rate and the claimant count had all risen while the employment rate and the number of employed people had fallen, as had the number of vacancies. The latest average earnings figures from the Office for National Statistics show that, in the year to May, whole economy average earnings including bonuses increased by 2.2%, but if bonuses are excluded the increase was 2.6%. Within this, the sectors vary sharply with the increases including bonuses varying from 1.8% in the private sector to 3.6% in the public sector and minus 0.2% in manufacturing to plus 2.7% in services. When bonuses are excluded the private sector increase was 2.2% and the public sector 3.7% and manufacturing pay rose by only 0.7% but services by 2.9%. Settlemens recorded on Payline show a wide variation, with the highest settlement in the three months to June being 13% but the lowest a 10% pay cut. There were four pay cuts recorded plus 38 pay freezes from a total of 180 settlements.
Prices May 2008 June July August September October November
Percentage increases on lowest basic rates (by agreements covered). For the three months up to and including: 2008 2009 Jul Aug Sep Oct Nov Dec Jan Feb All agreements 4.0 3.8 3.5 3.5 3.6 3.8 3.3 3.0 Private sector 4.0 4.0 4.0 3.9 3.9 4.0 3.5 3.0 Public sector 3.0 3.0 3.0 3.2 3.2 3.2 3.1 3.0 Manual 4.0 4.0 3.8 4.0 4.0 4.0 3.5 3.2 Non-manual 3.6 3.5 3.3 3.2 3.2 3.2 3.2 3.0 All industries 4.0 4.0 3.8 3.6 3.8 3.8 3.1 3.0 All services 3.9 3.5 3.5 3.4 3.6 3.8 3.5 3.4
Apr 2.0 2.0 2.5 2.0 2.5 1.7 2.8
For the 12 months up to and including: Jul By agreements 3.8 By workers covered 3.5
Aug Sep Oct 3.9 4.0 4.0 3.7 3.7 3.6
Nov Dec 4.0 4.0 3.7 3.6
Jan 3.9 3.7
Feb 3.8 3.7
Mar Apr 3.8 3.5 3.9 3.5
May Jun 3.4 3.2 3.4 3.1
The figures show median (midpoint) pay settlements among all the agreements monitored through the LRD pay and conditions database. The weighted median (by number of workers covered) appears in the 12-monthly table.
Full-time weekly average earnings All workers All male All female Managers Professionals Associate professional Admin & secretarial Skilled/craft Services Sales Operatives Other manual
£592.70 £651.30 £501.00 £880.00 £793.50 £612.50 £410.40 £497.80 £351.80 £325.60 £460.60 £357.40
Source: ASHE 2008 uprated by AEI.
Other pay analysts Industrial Relations Services (median, three months to end June 2009) Incomes Data Services (median, three months to end May 2009)
Retail prices % annual increases index (RPI), RPI RPI excl. Jan ’87=100 mortgages 215.1 216.8 216.5 217.2 218.4 217.7 216.0
Mar 3.0 3.0 3.0 3.0 3.0 2.8 3.2
This payround, AugMay Jun Jun 2.0 2.3 3.0 2.0 2.0 3.0 2.5 2.5 3.2 2.0 2.5 3.0 2.3 2.0 3.0 1.7 2.0 3.0 2.6 2.8 3.2
4.3 4.6 5.0 4.8 5.0 4.2 3.0
4.4 4.8 5.3 5.2 5.5 4.7 3.9
1.3%
2.0%
Prices December Jan 2009 February March April May June
Average earnings indices (including bonuses) Earnings % annual rise index1 for whole Whole Manufac- Services Private Public sector sector economy economy turing Mar (r) 2008 135.5 4.7 4.6 5.1 4.9 3.8 April (r) 133.9 2.9 2.6 3.3 2.8 3.7 May (r) 135.2 3.3 3.8 3.3 3.4 3.3 June 135.8 3.4 2.5 3.7 3.6 2.9 July 136.2 3.6 2.8 3.9 3.5 4.0 August 136.6 3.2 2.9 3.4 3.1 3.6 September 137.0 3.1 3.0 3.2 2.8 4.0 October 137.3 3.6 2.9 3.9 3.6 3.8 November 136.8 2.6 2.3 2.9 2.2 4.3 December 136.2 2.9 1.8 3.3 2.7 3.9 Jan 2009 134.7 -0.3 1.5 -0.7 -1.2 3.7 February 135.4 -1.8 1.0 -2.2 -2.6 3.7 March (r) 137.1 1.2 0.3 1.2 0.6 3.4 April (r) 138.5 3.4 2.4 3.4 3.4 3.6 May (p) 138.2 2.2 -0.2 2.7 1.8 3.6 2.3 -o.8 2.4 1.9 3.5 Headline rate2 for May 2000=100. 2 Average of earnings increases for latest three months compared to a year earlier. (r) revised. (p) provisional. Source: National Statistics. 1
Average of average earnings forecasts for 2009 is 1.1% (HM Treasury).
Retail prices % annual increases index (RPI), RPI RPI excl. Jan ’87=100 mortgages 212.9 210.1 211.4 211.3 211.5 212.8 213.4
0.9 0.1 0.0 -0.4 -1.2 -1.1 -1.6
2.8 2.4 2.5 2.2 1.7 1.6 1.0
Inflation forecasts Fourth quarter 2009 RPI
RPI excluding mortgages -1.3% 0.9%
Average Oxford Economic -1.1% Forecasting ITEM Club -2.4%
1.0% -0.5%
Source: HM Treasury, Forecasts for the UK Economy, July 2009.
2 Workplace Report July 2009
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news_Bargaining
WORKPLACE
report
USDAW’s landmark deal, unite’s groundbreaking conflict
PAY AND PRICES BARGAINING BT concedes a pay rise Alliance & Leicester Pay medians from Payline Further education pay
2 3-5
EQUALITY Negotiating for LGB workers
6
RECRUITMENT AND ORGANISATION Revised Acas code of practice
7
LEARNING AND TRAINING NEET statistics
7
EUROPE New parental leave agreement
8
LAW AT WORK 9-12 Dissmissals, redundancy and transfers HEALTH AND SAFETY 13-14 Gangmasters law for construction Work deaths at record low CWU calls for tougher HSE action Health and safety round-up 15-17 A summary of this year’s health and safety legislation and case law, plus information about strategies and agreements on climate change. London Weighting 18-19 London Weighting and the campaign for the London Living Wage aim in different ways to boost the pay of those living in the Capital. The Living Wage has scored some successes but London Weighting has not fared so well in the downturn.
IN NEXT MONTH’S Workplace Report: • Pensions – the crisis grows:
what are unions doing about it? • Learning and training – the new training landscape.
Workplace Report is published by the Labour Research Department. For subscription details and other information, see the back page.
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Tesco agrees 2.5% pay and works council
USDAW has won a pay deal of 2.5% at Britain’s biggest supermarket Tesco, alongside an agreement to begin formal discussions on setting up a European Works Council (EWC). The pay deal covers retail, the distribution Blue Book and Salmon Book, and new distribution sites. It also offers improvements to first aid pay and staff discounts, with additional leave and improvements to night premiums for some staff. The creation of a European Works Council is a landmark development. It makes Tesco the first UK-based food retailer to launch an EWC. An USDAW spokesperson said: “It will enhance the levels of information and consultation that take place between the business, staff and its social partners, and build on existing arrangements.” The EWC process is still at a very early stage. The next step according to USDAW is a meeting of the special negotiating body (SNB) of representatives from each country. Tesco operates in six European countries – the UK, Ireland, Poland, the Czech Republic, Hungary and Slovakia – and has around 366,000 staff across the EU. The SNB will be the body that agrees what the EWC will look like, how it will operate and what issues it will cover. But Unite general union is in conflict with the supermarket chain over attempts to derecognise it at the Chepstow distribution centre when the business moves to a new site. Ron Webb, Unite national officer, told Workplace Report that workers at Chepstow would lose an average of £4,000 a year in wages, with some falling short by up to £12,000, as a result of the move. Tesco has said
it will only recognise USDAW at the new site, and while it will protect contractual pay, Unite says this makes up only around 75% of the actual take-home pay of its members. “It’s a disgraceful way of treating the workforce,” said Webb. “[Tesco] wants to keep the workforce, but only if they agree to vastly inferior contracts.” He added: “We understand that Tesco have a big relationship with USDAW but it should not be at the expense of Unite.” The union is balloting for industrial action. In a more high-profile stand-off between Unite and Tesco, the union is campaigning against the treatment of migrant and agency workers in Tesco’s meat supply chain. Earlier this month, Unite took unprecedented action at the Tesco AGM by tabling a resolution calling for “an end to the exploitation and discrimination of workers employed by companies in the UK and Ireland that supply meat to Tesco.” Tesco has failed to act on this despite evidence presented by the union of the harsh conditions. The resolution is supported by one of Tesco’s big shareholders, the West Yorkshire Pension Fund, and received an 11.21% vote in favour, with a further 6.69% of shareholders abstaining. The result is being seen as a success. Jack Dromey, Unite deputy general secretary, said: “An unmistakable message has been sent to the board. Tesco must hear the voice of workers in the meat industry and now a growing number of its own shareholders.” It is believed to be the first time that a UK union has used a resolution to take the cause of workers to an AGM.
RMT members reject harmonisation terms RMT rail union members have overwhelmingly rejected the terms proposed by Network Rail for bringing maintenance workers onto a single structure for pay and conditions. The union and employers have been attempting to agree on harmonising the 50-plus different sets of terms and conditions for the last three years. Rail maintenance workers were brought back in-house by Network Rail but had previously worked for a number of independent contractors under separate contracts. In the last year, demands for cuts by the rail regulator led to talks being “hijacked” by managers “who saw harmonisation as an opportunity to attack pay and conditions as part of their £3 billion cuts plan,” according to Bob Crow, RMT general secretary.
“Because the rail regulator said they needed big changes, they introduced home start, multiskilling, 24-hour call-out and moving to a productivity related pay deal. There was pay protection but they wanted a lot of additional things for the same money,” said Mick Cash, senior assistant general secretary. One spokesperson described the proposals as a “the worst aspects of modern management techniques”. The rejection of the deal leaves workers on their previous terms and conditions. According to Cash, the RMT believes Network Rail “will try to cherry-pick bits of the current package, buy off people and get it done through the back door.” The union wants to bring employers back to the negotiating table within a year.
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news_bargaining pay deal round-up
pay deal offered but flexibility measures help BT cut costs
Pay deals on Payline
BT unfreezes on pay
Pay deals registered on Payline in June and July from the public sector include the Home Office, giving 4.67% on basic pay for those meeting satisfactory performance standards in the final stage of a three-year agreement. The Local Authorities (Scotland) craft agreement raised basic pay by 1.88% in the second stage of a two-year deal, including overtime, bonus and standby payments. And the Learning and Skills Council, in the last stage of a three-stage deal, gave 2% up to the grade maximum, and a minimum underpin of £825. In the private sector, the highest deal is 5.62% in the fourth stage of a two-year deal for Stagecoach Lancashire drivers. The deal has raised drivers’ pay by 11.2% (12.5% for minibus drivers) in total. Other staged pay deals include: 5% plus a £500 payment for workers at Shell/Exxon aviation group ASIG; 4.6% for the Scotland and Northern Ireland plumbing JIB; and 3.75% for workers at Scottish Water, in the final part of a 27-month agreement worth 7.75% in total. However, food distribution company 3663 has reneged on the second year of its agreement with HGV drivers, saying the planned increase of 3.25% would not be paid, and pay would be frozen. Negotiations there are continuing. New deals include the Yorkshire Building Society at 2.25%; Nairns Oatcakes at 2.8%; and Boots Logistics giving 1% on basic pay and premia. One new long-term deal at AstraZeneca offered 3% for 2009 with an increased holiday bonus. Other new deals were wage freezes, including BOC tanker drivers, Marlow Foods/Premier Foods Cleveland (the second stage of an RPI-based three-year deal) and the Southern Daily Echo (Newsquest). Solaglas has frozen pay for 60% of its workers, but those working in profitable branches will receive 2%.
BT will not impose a wage freeze on its staff this year, following lengthy and intense negotiations with the CWU communication workers union that saw the deal almost withdrawn at the last minute. BT is offering £400, non-consolidated, in two installments. Managerial staff have had their pay frozen but performance pay will still be given. In a separate settlement, the CWU has also negotiated cost-saving packages aimed at preventing compulsory redundancies. The company is seeking to shed around 10% of its pay bill costs. Andy Kerr, CWU deputy general secretary, said: “We recognise that there are falling work volumes at BT and have been focused on avoiding any need for compulsory redundancies. Some of the options being offered to staff – on a voluntary basis – include a payment of £1,000 to reduce their normal working hours. Another option is for staff to apply for sabbatical leave of between three and six months with a financial incentive.
“It is an effective way for BT to retain highly skilled and experienced staff through the current downturn. It is a far cheaper option than using the old tired methods of paying people off, only to go through high recruitment and training costs later on. It is an innovative solution in a 21st century world.” A CWU spokesperson added: “It is a serious situation, they are facing really tough times so we have tried to be as creative as possible in looking at alternative ways of solving the resourcing issues.” Following indications from previous surveys of employee preferences, the union is expecting a good take-up of the options on offer. However, the CWU has also stressed in pay talks that, long-term, BT remains profitable. In another move related to the changing structure of work and resourcing at BT, the company has stepped back from it’s groundbreaking homeworking arrangements and is recalling most of its staff back to the office. Staff will return initially for
three months’ training and most will be retained in the office after that. The CWU has negotiated special arrangements for those that took up the arrangement for health or mobility reasons or for other specific needs such as caring responsibilities, so that they are able to continue working from home. The CWU said there had been “a lot of suspicion” from its members over the move. The upheavals at BT have seen its unions involved in major negotiations on terms and conditions, pay and resourcing in a number of separate strands since late in 2008 when discussions began on the biggest ever changes to BT’s pension schemes (see Workplace Report, November 2008 p. 5). The changes have also included negotiations over the 15,000 redundancies already made with a further 15,000 in process, and the retraining of staff – often those used to working out on the road – to call-centre jobs as an alternative to redundancy. “It has been a big year for BT,” the CWU spokesperson said.
FE unions criticise AOC for continued low pay
Further education wins increase in pay offer Further education unions have succeeded in getting the Association of Colleges to increase its offer to 1.5% on all scales and allowances. UNISON public sector union, lecturers’ union UCU, and general unions GMB and Unite say that the offer is the best that can be gained by negotiations alone. They will be consulting members till September. Managers’ union ACM has accepted the deal. Unions have pointed out the disparity in pay increases between college heads and staff. Barry Lovejoy, head of FE at UCU, said: “We have highlighted the contradiction that, over the last two years or more, senior post-holders pay increase was on average double what our members
have had.” UCU is still campaigning for full implementation of the new national pay spine agreed in 200304. Around 59% of colleges have now implemented it fully with a further 12% in talks or having an interim agreement on adoption. UNISON is “very disappointed” that there is no underpin to the current pay offer, according to national officer Chris Fabby. The national pay spine should give a minimum rate of £6.91 an hour, and the 1.5% would raise this to £6.99. Fabby says this minimum has been achieved by previous underpin payments, but the number of colleges that have not yet implemented the pay spine means low pay is still prevalent. “We have
been pushing to get people on the harmonised pay spine,” he said. If UNISON members reject the deal the union will ballot for industrial action. •UNISON has condemned the actions of the UK Borders Agency in deporting six cleaners from the School of Oriental and African Studies (SOAS) in London in a raid in June. Two of the deported ISS cleaners were UNISON members. The union has written to the home secretary to protest, and will meet with ISS next week to agree a future protocol. The SOAS students’ union, supported by UCU and UNISON members, won an agreement from the college that includes discussions on bringing cleaning back in house.
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news_Bargaining news_bargaining CWU agrees 20-month pay settlement at bank
news in brief
Alliance & Leicester win pay from Santander CWU banking union members at Alliance & Leicester have voted overwhelmingly to accept a 20-month pay deal from Santander, the Spanish parent bank that also owns Abbey and Bradford & Bingley. Staff at the former building society will get increases of up to 3.75%, with the majority receiving 2.3% in two tranches: one now, the second in March 2010. There is an underpin of £0-250 for 2009 (£200 for average performers) and a further underpin of £0-275 (£225 for average performers) in March 2010. All allowances will go up by 1% this July, except on-call and call-out payments, which go up by 1.25% Pay scales and pay progression arrangements are also being improved.
The deal moves the pay date to 1 March to bring staff into line with other Santander pay negotiations. The deal is being seen as a positive one by the union. “The offer has
been secured in the exceptional circumstances of a recession, in the wake of the £1.3 billion loss by the Bank in 2008,” said Nigel Cotgrove, CWU assistant secretary .
Pay deal on table for firefighters Firefighters’ union the FBU is consulting members on a pay offer from employers of 1.25% across the board from 1 July 2009. The union had stated at its national conference in May that it would not accept any attempt to link pay with detrimental changes to terms and conditions, or a “take it or leave it” time-limited offer. The
FBU tabled a claim for 2.5%. In response, employers made a flat offer, with no additional conditions, and members are currently being consulted. An FBU spokesperson said: “The view of the union is that in the current climate 1.25% is the best that can be achieved through negotiations alone.”
pay medians continue to sink lower
Wage freezes are not the only story, data shows With the debate hotting up over the call for pay freezes in the public sectors, LRD’s Payline database shows justifications based on the idea of a widespread private sector freeze are unfounded. While pay medians economy-wide continue to fall, particularly in the private sector, positive pay deals, some for as much as 6% or more, are still being done. While public sector pay increases do currently run slightly ahead of the private sector, the marked difference shown by average earnings figures is based on loss of bonus for many in the private sector, particularly in finance, rather than on basic pay. As recorded on Payline, the median pay rise for the three months to June this year was just 2.13%, down from May’s three-month figure of 2.5%. The median is based on 164 pay deals. Of these, four were pay cuts and 37 (23%) were freezes.
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The real difference is being felt between those employers who have long-term deals with their unions, even though often based on an inflation-linked formula, and those who negotiate pay on a yearly basis. Excluding long-term and staged deals, the three-monthly median rise for new pay deals across the whole economy was just 1.5%, (the same as the figure for March to May), of
Pensions on Payline
LRD is collecting data on private sector pensions from union reps and officials. The data will be analysed and made available on Payline for subscribers later this year. To contribute, please email nina@ lrd.org.uk As usual, there will be no August issue of Workplace Report. The next issue will will come out in time for the TUC
which three were pay cuts and 33 (37%) were freezes. The proportion is slightly lower than for the May figures, where 40% of new pay deals were freezes. The range of new pay settlements was broad, stretching from -5% to +6.25%. The six-monthly medians for pay rises from January to June are 2.5% for all deals, 3.2% for long-term and staged deals, and just 2% for new deals.
Congress in September and will contain a feature on pensions linked to the forthcoming Payline data and other LRD research. Further information relating to London Weighting, in addition to that published in this month’s feature (see p. 18-19), is also available on Payline. For more information, visit www.lrd.org.uk and click on Payline.
Unions welcome blacklist action
Unions have issued statements welcoming government plans to outlaw the blacklisting of trade union members. Dave Prentis, general secretary of UNISON, said: “UNISON applauds government moves to deal with this despicable practice. There is no place in a modern society for allowing employers to discriminate against workers just because they belong to a trade union.” The government has launched a consultation exercise on the proposed new law. The consultation document can be accessed at: www.berr.gov.uk/ consultations/page52145.html
Retirement age recommendation
The Commons committee on work and pensions has recommended that the 2006 regulation that permits employers to force people into retirement at 65 should be scrapped, in the light of the European Court of Justice judgment on the Heyday case (see Workplace Report, March and April 2009). The committee said the rule “contradicts the government’s wider social policy and labour market objectives to raise the average retirement age and allow people to continue to work and save for their retirement.” This is likely to end the default retirement age, as the government now plans to review the law in 2010.
Climate change project
The Climate Outreach and Information Network (COIN) has launched a project aimed at mobilising the trade union movement on climate change. The project, funded by Defra, plans to create a wave of community action on transport, cutting domestic energy bills, and food purchase and packaging. Communications union CWU, teachers’ union the NUT, civil service union PCS and lecturers’ union UCU will be working with COIN to create 1,100 action groups to spread the word in workplaces.
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news_equality news_bargaining News in brief Equality reps hold other union roles
Equality reps are a mixture of new union activists, current reps adding to their role and former reps continuing their union engagement, according to a report from a TUC project. The project received £1.5 million through the Union Modernisation Fund to train equality reps and promote their role in unions and the workplace, and has trained 220 reps so far, 60 of them online. A survey found that the most common position after equality rep is branch committee member, “perhaps indicating that the equality rep is seen as part of the overall local union team.” A significant number also reported being a workplace rep, with a smaller number being health and safety reps. TUC equality reps project report can be accessed at: www.tuc.org.uk/equality/tuc16605-f0.pdf
Diversity still important in recession
Employers still see diversity as an important priority despite the downturn, according to the latest benchmarking survey from Opportunity Now, the businessled organisation that promotes gender equality and diversity. Its 2008-09 analysis finds that 86% of employers say they are still commiting financial resources to helping create more diverse workplaces, up from 81% in 2006. The report, Measuring progress: meeting challenges, surveyed practices in 77 major employers in the private and public sectors. It also found that three-quarters (74%) of organisations can make a link between their diversity initiatives and employee engagement. Meanwhile almost all employers (96%) said they had a senior level leader championing the importance of diversity in their organisation – in almost a fifth (19%) this was the chief executive.
tackling prejudice and harassment still priority for LGB workers
Bargaining for lesbian, gay and bisexual workers Despite the 2003 introduction of the Employment Equality (Sexual Orientation) Regulations which ban discrimination on grounds of sexual orientation, lesbian, gay and bisexual workers continue to face prejudice in employment, the UNISON public services union points out in bargaining advice to members. The union has recently produced an updated version of its factsheet Bargaining for lesbian, gay and bisexual workers rights, which insists that every trade unionist “has a responsibility to challenge this discrimination” which is “part of our core agenda for workers’ rights”. UNISON has a separate factsheet on Bargaining for transgender workers rights which it published three years ago. Among the key negotiating areas in the reissued guidance on LGB workers is harassment and bullying. It cites one of UNISON’s own surveys of LGB members which found that 52% had experienced harassment
or other discrimination because of their sexual orientation. The factsheet advises that one of the issues particular to this area is a confidential complaints procedure. This “must enable people to make a complaint without fear of reprisal or of outing themselves to anyone apart from the designated person/ people, who should not have to be their line manager.” Any harassment policy should include specific reference to homophobic harassment and also include steps to tackle harassment by service users as well as co-workers and managers. Reps should also negotiate family-friendly policies that are accessible to LGB workers without their “having to jump through hoops to ‘prove’ their entitlement and which they can access confidentially, if this is what they want.” The guidance points out that many local special leave agreements are highly discretionary, which can “cause enormous problems for people in same-sex relationships
who have homophobic managers or who are not out at work.” Reps are advised to negotiate a confidential point of contact for special leave for people who, for good reason, do not want to go to their line manager. Reps should also ensure employers do not block certain emails, thanks to IT firewalls and filters which have very basic screening. These block emails containing the words lesbian, gay or bisexual, automatically quarantining them as offensive, adult or unprofessional. “There have even been cases of union activists hauled in under disciplinary procedures for receiving UNISON emails about LGBT workers’ equality,” says the factsheet. Anti-discrimination legislation may have been in effect for over five years, but UNISON emphasises that “laws on their own don’t stop discrimination.” It adds: “It is up to us to negotiate polices and practices that make a real difference to the working lives of our lesbian, gay and bisexual members.”
Job loss and inadequate pensions threaten over 50s’ living standards
Older workers at risk of poverty in cuts
Over a quarter of those aged over 50 are afraid their age will be used to force them out of work if their employer cuts staff. And nearly half are losing confidence that their pensions will provide for a decent living standard in retirement. The findings come from research carried out by Age Concern and Help the Aged, the newly merged charity for older people, which is urging employers to start looking at older workers’ skills, experience and commitment, not just their age. The study found 28% of 943 respondents were concerned they might face the dole, while 47% were less
confident than six months ago that their pensions would be adequate. The organisation’s charity director Michelle Mitchell said: “These figures paint an extremely bleak picture for millions of over 50s whose working lives are at risk of being cut short by the recession.” She added that those who lose their jobs, “will face significant obstacles to getting back into work, leaving them financially vulnerable as they approach retirement.” The charity is also calling on the government to help older workers through the recession by getting rid of the statutory default retirement age of 65; providing financial
incentives to employers who take on 50-plus workers who have been out of work for more than six months; and providing a tailored package of support for those over 50 who do lose their job, including specialised training for Jobcentre Plus staff. A separate Age Concern and Help the Aged survey found that 15% of organisations that had a mandatory retirement policy in place planned to use it more as a result of the recession. Mitchell said: “It’s wrongheaded and economically unwise for employers to force people who want to work out of a job just because of their age.”
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news_recruitment and news_bargaining organisation changes to TIME OFF code INCLUDE work cover for union reps
Unions welcome revised time off code of practice from Acas The TUC has welcomed new aspects of the revised code of practice on time off for trade union duties and activities produced last month by industrial relations service Acas after extensive consultation. The code replaces a 2003 version and has been designed to “reflect the changing nature of the British workplace and the effect this has had on time off arrangements for trade union representation,” according to Acas. For example, it revises a number of clauses to help reps cater for “atypical” workers such as temporary staff and those in diverse locations. The decision to update the code followed a government review of workplace reps’ facilities and facility
time which concluded that “some reps face problems in successfully balancing their normal work duties with their representative functions.” The final version of the code includes last-minute revisions which put some responsibility on employers to address the problem of work cover for reps when they are absent on union duties or training, rather than leaving the onus on reps. For example, a new clause states: “Employers should ensure that, where necessary, work cover and/or work load reductions are provided when time off is required. This can include the allocation of duties to other employees, rearranging work to a different time or a reduction in workloads.” TUC national officer Paul Nowak
welcomed the fact that the code now “stresses the need for employers to ensure that work cover and/or workload reductions are provided ... We know that a lack of cover provides a practical barrier to many reps undertaking their duties.” He pointed to a TUC/Personnel Today survey in 2007 that indicated that only half of employers provided cover. The new code also updates the clauses on facilities to include electronic communications such as email. The TUC is pleased that these emphasise that: “Employers must respect the confidential and sensitive nature of communications between union reps and their members. The code makes it clear that employers should not, for example,
carry out regular monitoring of union emails.” The TUC remains disappointed that the government will not give similar statutory rights to equality and environmental reps but welcomes Acas’s decision to give employers practical guidance on the role of these reps in a new guide on managing provisions for employee representation. There are two of these guides – one relating to union reps and one to non-union reps – covering provisions for time, training and facilities. The guidance was originally presented in one document. The code will now be laid before parliament and comes into effect on 1 October 2009. See: www.acas.org. uk/index.aspx?articleid=2391
news_Learning AND training MORE JOBLESSNESS AND LACK OF TRAINING FOR YOUTH
unite calls for mANUFACTURING to raise its game
NEET statistics
Skills Academy
New statistics from the Department for Children, Schools and Families (DCSF) on young people not in employment, education or training, the so-called “neets”, paint a depressing picture. The number has reached a record high with figures showing that the proportion of neet 16-to-24-year-olds in England rose from 13.6% to 15.6% over the first three months of 2009. There are now 935,000 16-to-24-year-old neets in England, up from 810,000 at the end of last year, and the proportion of 18-24-year-old neets is 17.6%. Over the same period there has been a drop in the number of young people starting apprenticeships in England. The overall number of apprenticeships begun in 2008-09 rose 15% on the previous year, to 196,600. But they fell 8.3% among 16 to 18-year-olds to 81,700, and the 68,000 started by those aged 19 to 24 was a 2% decrease on the year
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before. The total was boosted by a near-quadrupling of apprenticeships among the over 25s, to 46,800. In addition, according to the latest labour market statistics from the Office for National Statistics (ONS) youth unemployment is running at its highest rate for 15 years – 16.6% for 18-24 year olds (Feb-Apr 2009). This is likely to increase over the coming weeks as school leavers and new graduates enter the job market. At the end of June, prime minister Gordon Brown announced serious sanctions for the under-25s in the government’s new legislative programme entitled Building Britain’s Future. Those without employment for a year or more will be forced to take a job, training position, or work experience or face losing benefits. The plan has been criticised by trade unions. NEET Statistics: Quarterly Brief: www.dcsf.gov.uk/rsgateway/
Proskills, the sector skills council for the process and manufacturing sector, has announced that it has secured a National Skills Academy “which will go some way towards helping arrest the talent drain across the Proskills industries”. These include print, paper, glass, extractives and the furniture industry. General union Unite was a key player in the efforts to bring about the new Academy for Materials, Production and Supply. However, while welcoming the new development, the union warns that it will only deliver the skills needed for the future if industries are prepared to use it and “raise their game”. Speaking at the Academy launch in June 2009, Unite assistant general secretary, Tony Burke, said: “It is no secret that Unite has been highly critical of the lack of training in some sectors of industry. The negative response from some employers
when asked to step up their training arrangements is damaging to our industry…If we are going to come out of this recession in any decent shape, if we are still to have a decent manufacturing base, we will need to have the high levels of production, operational, technical skills, which the current system has not been able to deliver.” •The TUC’s learning organisation, unionlearn, has produced a new publication called Leaders in learning detailing case study evidence of how employers and unions working together can deliver workplace learning for mutual benefit. Among the organisations included that have developed successful learning partnerships are Boots Logistics, Fletchers Bakery, JCB and the Crown Prosecution Service. Copies of Leaders in learning can be downloaded at www.unionlearn.org. uk/about/learn-2918-fo.cfm
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news_Europe news_bargaining France: government sets minimum wage to lowest rise under formula
Smallest possible increase for French minimum wage The French national minimum wage, known by its French initials as the SMIC, has been increased by 1.25% – the minimum according to the formula set by French law. The increase came into effect on 1 July. It takes the value of the SMIC to €8.82 an hour – up from €8.71, equivalent to a monthly rate of €1,333.50, a rise from €1,321.00 a month previously. Since the election of the centreright president Nicolas Sarkozy three years ago, the increases have been at the minimum level permitted by law, although the formula allows the government to put the SMIC up by more if it chooses. The formula used to calculate this minimum is the annual increase in consumer prices (excluding tobacco) for urban households plus half the increase in pay, after inflation, of manual workers. This year the urban price index fell by 0.2%, while manual workers’ real pay rose by
2.5%. The government decided to ignore the fall in prices and increase the SMIC by half the real increase in manual workers’ pay, producing an increase of 1.25%. This compares with an overall annual decrease in prices of 0.3% (May). This decision is in line with the recommendation of a new group of experts, established this year, who argued that previous SMIC increases above the minimum had “often had the effect of excluding from employment workers in the most difficult situations, starting with young people and single parents.” But this view is not shared by unions. The CGT, one of France’s two largest union confederations, called for an increase in the SMIC to €1,600 a month – around 20% higher than at present – arguing that it was “the weakest employees and those with fewest resources” who were being asked to make
sacrifices, while “dividends were being protected”. The CFDT, the other large union confederation, called for more government effort to maintain consumption in the current economic crisis, including a 2.3% increase in the minimum wage. Around 3.4 million people are likely to benefit from the increase in
the SMIC, 14% of those employed in the private sector. The controversy is likely to emerge again fairly soon. The same law that established the group of experts also includes a change to the date on which the SMIC is increased. From 2010 it will go up each year on 1 January, rather than on 1 July.
Netherlands minimum wage The national minimum wage in the Netherlands also went up on 1 July, increasing by 1.26% from the previous €1,381.20 a month to the current figure of €1,398.60. The new rate is equivalent to €8.97 an hour for a 36-hour week. (The rate is set on a weekly or monthly basis – so someone working longer hours will have a lower hourly rate.) In contrast to France, the Netherlands minimum wage
goes up twice a year, in July and in January. This means it has increased by 3.1% since last year, in line with collectively agreed rates. On the other hand, while the French SMIC is paid to all employees aged 18 and over, the Dutch minimum rate only applies to those aged 23 and over. 18-year-olds in the Netherlands only get 45.5% of the full minimum rate, equivalent to €628.45 a month.
EU: parental leave agreement with unions gives four months off
Parental leave rules to be revised by EU after new union agreement Parental leave will increase from three to four months, and parents on leave will enjoy additional protection under a new law agreed by unions and employers at European level. The new agreement must now be transformed into binding European Union (EU) legislation and it is likely to come into effect in the second half of 2011. The agreement, which was signed on 18 June, revises a previous agreement on parental leave, concluded in December 1995. The main improvements are: •an increase in the length of leave from three months to four months, although there is still no requirement for it to be paid;
•a clearer statement that the right
applies to all workers and that member states cannot exclude people simply because they work part-time, have fixed-term contracts, or are agency workers; •a new provision allowing workers to request changes to their hours or working patterns when they return from parental leave – employers are required to “consider and respond to such requests, taking into account both the employers’ and the workers’ needs”; and •a change in the wording on the protection given to those making use of these new rights – where in the past those asking for or taking parental leave were protected against
dismissal, the new agreement states that they are also protected against “less favourable treatment”. Negotiations have been going on since September 2008, with the European Trade Union Confederation (ETUC) delegation consisting of 29 representatives from member states plus representatives of the ETUC women’s’ committee, the union industry federations and other bodies. ETUC deputy general secretary Maria Helena Andre told Workplace Report that she was pleased about important advances in the agreement. But the ETUC was disappointed that it had not been possible to end the practice in some member states of allowing the leave to be transferred between
parents – making it less likely that fathers took it up. “The compromise was that at least one month had to be non-transferable,” she said. Now that the agreement has been signed, it goes to the European Commission for further examination. As the EU treaties provide for agreement between unions and employers at European level to be implemented by EU directives, it is likely that the Council of Ministers (the representatives of member states) will approve an appropriate directive either later this summer or in the autumn. It must then be brought into force in member states within two years. The euro was worth 86.4p on 13 July 2009.
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law_transfers
TUPE transfers, dismissals and redundancy law This month’s cases cover law in the areas of TUPE transfers, dismissal and redundancy, examining the changes to legal precedent and explaining how reps can interpret and use the law
Employer only has to consult staff pre-transfer Case 1: The facts In 2006 Glasgow City Council transferred the 2,000 employees working within its Business Services Division to a new specially created entity called City Building (Glasgow) llP. the unions representing the staff complained that both Glasgow CC (the transferor) and City Building had failed to adequately inform and consult with them. Under the acquired Rights Directive (Council Directive 2001/23/ EC) , as transposed into UK law by tUPE, employees are entitled to be informed and consulted about the transfer. What was disputed by the parties was whether City Building had a duty to consult about any measures that it envisaged taking in connection with the transfer after the acquisition had occurred. the tribunal found for the employer and the unions appealed. The ruling the Eat examined a number of the documents produced by the European Commission about the Directive, together with some employment law texts. the Eat concluded that none of these sources actively suggested that tUPE obliged the transferee (City Building) to consult post-transfer. the Eat noted that article 7(1) of the Directive lists the information that must be provided to employees (eg measures envisaged). the
provision of that information is required so that the affected individuals are able to decide whether they want to transfer to, or instead object to working for, the proposed new employer. Information provided after the transfer would obviously be received too late to assist with that decision. also, the Eat found that if information were to be provided after the transfer it might prevent the new employer from effectively making the necessary arrangements (such as acquiring new premises to accommodate the new members of staff). the Eat considered instead that the list contained within article 7(1) did make sense, if viewed as a requirement for information to be provided solely prior to (rather than also, after) the transfer. the Eat found that requiring the transferee to consult with employees post transfer would serve no purpose - the new employer would have nothing to consult about as transferred employees’ terms and conditions cannot be amended. furthermore, the Eat considered that to require transferred employees to be consulted about measures envisaged following a transfer, would give them more protection than individuals who had joined the entity following the transfer. In terms of the transferee consulting with pre-existing staff, the Eat noted that paragraph three of
Transfers – the basic legal rules The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) state that, when a business or part of a business is transferred from one employer to another, the employees doing the work should transfer on their existing terms and conditions. Serviceprovision changes are explicitly covered. •To come within TUPE, there has to be a relevant transfer of an activity that amounts to a “stable economic entity”. •The employer before the transfer is referred to as the “transferor”, and the employer to whom the business transfers is the “transferee”. •Under TUPE, most legal liabilities (for example, wages owed) transfer to the transferee. An employee covered by TUPE has the right to continued terms and conditions, but there are special rules regarding pensions. There is no rigid time limit after which TUPE protection no longer applies, but this does not mean that transferred employees’ terms and conditions can never change.
the key developments • TUPE does not require employers to consult with transferred staff following an acquisition (case 1). article 7(1) does refer to this. the Eat found the Directive did not impose a requirement on transferees to inform and consult pre-existing staff post-transfer. However, the Eat did comment that consulting with preexisting employees post-transfer could be desirable. accordingly the appeal failed and the Eat ruled that, including under article 7(1) and 7(3) of the Directive), where measures (eg redundancies) are envisaged following the transfer, there is no requirement under tUPE (although there would be under tUlRCa) to consult with transferred employees.
Commentary the Eat’s reason for believing that consultation following a transfer would serve no purpose is curious. the Eat stated that changes to terms and conditions are not permitted to the contracts of individuals who’ve transferred. that is not entirely correct, as pension schemes (one of the most valuable benefits) do not transfer. In fact, the generosity of the proposed alternative schemes is precisely the kind of issue that should be the subject of a consultation. also, frequently employers will argue that transferring employees have a contractual entitlement to a
generic type of benefit (such as travel or health insurance) rather than to a specific form of that benefit (ie a certain level of insurance cover). these kinds of arguments and changes should be discussed and it is not correct to say that consultation would serve no purpose. Bear in mind that the bargaining power of newly transferred employees will only decrease as the transferee gradually extracts the information it needs on how to run the new business. therefore, irrespective of this ruling, employee reps should, as soon as possible after the transfer, exert maximum pressure with regards to issues such as replacement pension terms. 1) UCATT 2) Amicus 3) TGWU v 1) Glasgow City Council 2) City Building (Glasgow) LLP, UKEATS/0007/08/MT Case details are available at www. employmentappeals. gov.uk (EAT) and www. bailii.org (Court of Appeal). Call 020 8686 9141 for details of the journal Industrial Relations Law Reports (IRLR).
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law_dismissals
Dismissals – the basic legal rules Employees dismissed unfairly can go to a tribunal if they have been working for at least a year. There are special rules for retirement dismissals. Claims must normally be made within three months of the dismissal. A dismissal can only be fair if it is for a substantial reason, eg the employee’s conduct, capability, redundancy, retirement, for contravention of a legal requirement or “for some other substantial reason”. There should always be an investigation before dismissal in conduct cases. Employers cannot fairly dismiss individuals for taking official industrial action, at least within the first 12 weeks of that action. Specific issues arise where the dismissal is in the context of workers having taken action over health and safety concerns. Employees dismissed for most automatically unfair reasons (eg related to pregnancy, whistleblowing, trade union activities or trying to claim a statutory right) do not need any minimum service. Employees can also claim constructive dismissal if they leave as a result of the employer’s actions. They must show that the employer fundamentally breached the employment contract, and that they left because of that breach (“accepted” the breach) with no significant delay between the breach and their leaving. If a tribunal finds that a dismissal is unfair, it can award reinstatement or compensation subject to a statutory maximum (generally £66,200 for the compensatory award for dismissals from 1 February 2009). However, it can also reduce the compensation for contributory fault or, where the dismissal was unfair because of poor procedures, to reflect the chance that the employee would have been dismissed even if fair procedures had been followed (known as a “Polkey” reduction).
Constructive dismissal test Case 1: The facts P ro fe ss o r B u ckl a n d ta u g h t Environmental archaeology at Bournemouth University. In Summer 2006, he failed approaching a third of his students’ exam papers. the results were barely changed following moderated resits. In September 2006 the Board of Examiners (chaired by Dr astin) checked and confirmed the marks. But two members, Dr astin and Dr Russell (programme leader for archaeology), were concerned about the high number of failures, and after a further informal review, Dr Russell wrote a note criticising the original scoring. another member of staff, Mr Hewitt, was then tasked with carrying out a formal review of the marks. Professor Buckland registered a complaint with the head of school. He argued that the decision of the Board
of Examiners could not be overturned by one individual and that the correct procedure was for the dispute to be referred to external examiners. Mr Hewitt’s re-marking increased the original results by between 2% and 6%, which considerably reduced the number of fails. Mr Hewitt’s marks were approved by Dr astin without consulting with Professor Buckland or the head of academic development and quality. Professor Buckland made a further complaint, this time to the pro vice chancellor education. He complained about the arbitrary overruling of his marking and questioned the value of the degrees awarded to other students. He also said he intended to publicise his concerns. an enquiry was then set up, which interviewed seven people and considered Professor Buckland’s
written submissions (he declined to attend in person). the report of the enquiry (published in January 2007) was clearly critical of Dr astin’s approval of Mr Hewitt’s remarking. However, Professor Buckland remained dissatisfied and on 22 february 2007 he resigned. He subsequently brought a claim for constructive unfair dismissal and breach of the Public Interest Disclosure act (whistleblowing law) in the tribunal. the tribunal agreed that Professor Buckland had been unfairly dismissed when Mr Hewitt’s marks were confirmed by Dr astin, but did not agree that there was any connection between the ending of Professor Buckland’s employment and his protected disclosures. the university appealed to the Eat.
The ruling the Eat found that the tribunal was entitled to find that Bournemouth University was in fundamental breach of contract – specifically by Dr astin confirming Mr Hewitt’s marks. But by waiting to resign did Professor Buckland affirm the breach? the Eat noted that the tribunal found that the principal reason for Professor Buckland delaying his resignation was to avoid disruption to his students’ studies. the Eat decided that Professor Buckland was entitled to await the outcome of the enquiry before deciding whether to resign or not. the Eat noted the employer’s argument that the tribunal had failed to consider the band of reasonable responses test. In other words, if a potentially fair reason for dismissal had been shown, was it necessary to consider whether the employer acted reasonably in treating that reason as a sufficient cause for dismissal? the Eat found that this “range” test has no application to cases of constructive dismissal. three other decisions of the Eat (Claridge v Daler Rowney [2008] ICR 1267, abbey national plc v fairbrother [2007] IRlR 320 and Hamilton v tanberg television ltd (unreported)) are at variance on this point. In terms of curing the breach, ie whether the university took steps to remedy Dr astin’s actions, the Eat found that the tribunal was wrong to state that it doubted that there was anything that the university could
have done to restore trust and confidence. the enquiry report upheld Professor Buckland’s complaint, and could not have gone further. the tribunal erred by focusing on how Professor Buckland subjectively viewed the report; instead the tribunal should have taken an objective approach. the Eat considered that the decision of Roberts v West Coast trains ltd [2005] ICR 254 was analogous to Professor Buckland’s case. the Roberts case established that an employer’s decision to overturn an earlier disciplinary panel’s decision to dismiss, resulted in the contract being revived (ie the earlier dismissal vanished). Professor Buckland permitted the university to try to remedy the breach – which the investigation and report did. accordingly at the point at which Professor Buckland resigned, the university was no longer in breach of contract. as the breach had been remedied there was no unfair dismissal – therefore the Eat allowed the university’s appeal.
Commentary this case shows that employers should be allowed to try to make amends for previous mistakes. Employment legislation is designed primarily to preserve employment: resigning as an alternative to helping to correct a problem will often not be particularly attractive, financially or otherwise, for an individual. However, employees must respond to the breach within a reasonable period of time by raising a grievance and bringing a claim of unfair dismissal. In this case the employee was permitted to take some months before lodging a tribunal claim. that kind of time frame is exceptional and employees should normally raise a grievance promptly (within a matter of weeks) followed by a tribunal claim if the matter is unresolved, normally within no more than three months of the date of the disputed act or omission. Bournemouth University Higher Education Corporation v Buckland, UKEAT/0492/08
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law_dismissals
Thorough investigations Case 2: The facts Mr Cooke worked in the It department of the foreign and Commonwealth office. In 2006 an audit by the fCo’s security department showed that pornographic material was on Mr Cooke’s computer as well as on the department’s proxy server. four days later Mr Cooke and other members of the It department were suspended and an investigation commenced. During the investigation Mr Cooke admitted using his computer to copy porn. He stated that a member of the maintenance staff had asked him to convert some films (content unknown) into DvD format. Part way through copying the material, he realised that it was porn and sought his line manager’s advice. His line manager told him to finish the task and then delete the material. on another occasion a colleague made a similar request of him. again Mr Cooke started copying the material but then changed his mind and terminated the process. However, Mr Cooke denied he had ever downloaded porn or that he had tried to conceal his porn-related activity by taking steps to delete files from his computer. the disciplinary panel concluded that on the balance of probabilities. Mr Cooke was guilty of gross misconduct. accordingly on 3 august 2006 he was dismissed, along with four other employees. at internal appeal, two of Mr Cooke’s colleagues were reinstated, but the termination of his employment was confirmed. Mr Cooke brought an unfair dismissal claim in the employment tribunal. the tribunal found that the fCo genuinely believed that Mr Cooke had been guilty of misconduct and that it had reasonable grounds for that belief. However the tribunal decided that the investigation was outside of the range of reasonable responses. accordingly it found that Mr Cooke had been unfairly dismissed. the employer appealed. The ruling the fCo argued that the fact that Mr Cooke had downloaded and copied pornographic material meant that the tribunal should have gone on to
find that if an adequate investigation had been carried out, Mr Cooke’s dismissal would still have been fair. the Eat rejected this argument. It stated that there were too many unknowns to say with certainty that that was the conclusion that the tribunal would have been obliged to reach. In particular the Eat did not feel that it knew enough, from the tribunal’s ruling, about the fCo’s disciplinary code or how the fCo had dealt with previous situations in the past. the Eat also held that it was unaware of the nature of the porn and that this was a relevant factor for the disciplinary panel to have taken into account. the Eat also noted that a number of Mr Cooke’s colleagues had access to his computer and that Mr Cooke could not physically have been responsible for all the downloads but that accessing of porn at that workplace was rife. the Eat was critical of the fCo’s failure to analyse when files were created and whether this corresponded to times/dates that the Mr Cooke was at his computer. Given the flaws in the tribunal’s judgment the employer’s appeal was upheld. the Eat declined a request that the same tribunal amplify its reasons for reaching its judgment and the case was remitted to a differently constituted tribunal.
Commentary viewing pornography at work is almost certainly a serious breach of an employer’s disciplinary code (although not, following an april 2005 supreme court ruling, in norway), despite the tribunal’s consideration of the type of porn being viewed. In Mr Cooke’s case, he was able to show that the fCo’s investigation was so lax that his dismissal was unfair. Particularly at a time when employers may be tempted to terminate staff posts on the grounds of gross misconduct (so avoiding having to pay redundancy) this case illustrates that the threshold for justifying dismissal can be quite high. Foreign and Commonwealth Office v Cooke UKEAT/0545/08/ CEA
Dismissals – the key developments • The “range of reasonable responses” test does not apply to constructive dismissals (case 1). • A failure to carry out a sufficiently thorough investigation can render a dismissal unfair (case 2). • What constitutes a last straw event sufficient to justify an employee resigning and claiming constructive dismissal? (case 3).
What is the final straw? Case 3: The facts Mr Moncrieff was employed by Wishaw and District Housing association (WDHa). In May 2006 he attended an informal meeting (a precursor to a formal disciplinary one) at which managers raised 13 areas of concern about his performance. following receipt of the notes of the meeting Mr Moncrieff went off long-term sick with depression. Mrs Cooper, the chief executive of WDHa, was sceptical about Mr Moncrieff’s illness so Mr Moncrieff’s wife went to WDHa to explain the background, which included three recent major family tragedies. Mrs Cooper was not conciliatory and stated that Mr Moncrieff had already talked openly about some of these matters. further confrontational correspondence was exchanged. Mr Moncrieff’s GP advised that he should be fit for work by early 2007, but that in the meantime his contact with his employer should be limited. all subsequent communication was via Mr Moncrieff’s solicitors. WDHa said it wanted Mr Moncrieff to return to work by 15 December 2006 failing which a capability procedure would be commenced which might lead to his dismissal. He objected to WDHa’s threats, which did not come to fruition. arbitration via acas was proposed by Mr Moncrieff but never occurred. However, in January 2007 Mr Moncrieff resigned and brought a claim for constructive unfair dismissal. the tribunal found for Mr Moncrieff but the employer appealed. The ruling the Eat noted the tests for constructive dismissal (lewis v Motorworld Garages ltd [1986] ICR 157) including the need for a “last straw” event
justifying a claim of constructive dismissal (omilaju v Waltham forest lBC [2005] ICR 481). the Eat was not clear as to what the tribunal had found was the last straw event causing Mr Moncrieff to resign. It agreed with the employer that there were only two possible such events. firstly a letter of 3 november 2006 in which WDHa wrote to Mr Moncrieff’s solicitors stating “…[our] earlier requirements regarding return to work by 15 December still stand... If George [Moncrieff] has not returned to work by the date given then he will be asked to attend a hearing where his dismissal will be considered.” the Eat took the view that this letter could not fairly be interpreted as telling Mr Moncrieff that he would definitely be dismissed if he did not return to work by 15 December. Even if this was sufficient to justify a resignation, by subsequently proposing a referral to acas, Mr Moncrieff may have indicated that he was affirming the contract. Secondly, there was a letter from WDHa on 11 november 2006, which the Eat found to be appropriate and professional. accordingly the Eat ruled that there were no facts on which the tribunal could rule that there was a “last straw” event justifying a claim of constructive unfair dismissal.the employer’s appeal succeeded.
Commentary Claims of constructive dismissal need to be based on employers’ objectively reprehensible behaviour. Consideration needs to be given to whether an outsider approaching the complaint from the documents alone, would be bound to form the same view. Wishaw and District Housing Association v Moncrieff, UKEATS/0066/08/BI
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law_redundancy
Redundancy – the basic legal rules A redundancy situation exists where an employer closes or intends to close the workplace or reduce the number of employees doing a particular kind of work. The employer must: • adopt redundancy selection criteria which are not discriminatory; • allow employees selected for redundancy the right to time off to look for other work, provided they have at least two years’ service; • pay redundancy pay to all employees with at least two years’ service: one and a half weeks’ gross pay for each year of employment not below 41 years of age; one week’s pay for each year of employment below 41 but not below 22 years of age; and half a week’s pay for each year of employment below the age of 22. A week’s gross pay is subject to the statutory maximum of £350 a week for dismissals from 1 February 2009 (a rise to £380 was announced in the Budget on 22 April); • offer alternative (and suitable) employment where this is available. If at least 20 redundancies are proposed, the employer must notify the Department for Business, Innovation and Skills (BIS). It must also consult employee reps, with a view to reducing the number of redundancies. Where an employer fails to consult, a union can apply for a protective award, up to a maximum of 90 days’ pay.
the key developments
• Once waived, state immunity is not relevant to statutory interpretation but may amount to a special circumstance under TULR(C)A (case 1).
State waived immunity from consultation Case 1: The facts from at least early 2004, consideration was given by the United States army to closing its base at Hythe in Hampshire. In early 2006 an audit of the base (at which 200 civilians were employed) was carried out. the resulting report made it clear that a decision had already been taken to cease operations at the base. on friday 21 april 2006 the BBC carried a news item about the closure of the base. Subsequent to this, on Monday 24 april 2006, the commanding officer (Co) of the base called a meeting of the workforce. at that meeting, the workforce were formally told about the closure. following the meeting with the base Co, the workforce agreed that they had a need for an employee representative. By a show of hands, Ms nolan was appointed to the local national Executive Council (lnEC).
on 9 May 2006 the United States notified the Ministry of Defence that operations at its Hythe base would cease and on 5 June 2006 a consultation with the lnEC began. Redundancy notices were issued on 30 June 2006 and the entire civilian staff were made redundant on 29 September 2006. Given the sequence of events, unsurprisingly, the employees, felt that the consultation about redundancies had been inadequate. Specifically the consultation had not commenced until the relevant decisions had already been taken. an employment tribunal claim was lodged by Ms nolan, the employee representative on the lnEC. although the US could have pleaded state immunity, it waived its right to do so. the US subsequently failed in its arguments and the tribunal made a protective award of 30 days’ pay per employee. the US lodged an appeal with the Eat.
The ruling although the US had waived its right to state immunity, it argued that the requirement to consult should be viewed in light of that right. the Eat acknowledged that courts will not interfere with decisions that are of a sovereign nature. However, the Eat considered that the right to state immunity is not relevant to interpreting how statutes should be applied. this was the case even though the Eat agreed that consulting with employees and their representatives prior to deciding to close a military base did have security implications. and also despite the Eat agreeing that requiring high level officials of a foreign government to consult with staff “with a view to reaching agreement” seemed odd. the Eat observed that even though the US had waived its right to state immunity, it could still have raised the defence under section 188(7) trade Union and labour Relations (Consolidation) act 1992 (tUlR(C)a) that there were special circumstances as to why complying with the requirement to consult was not reasonably practicable. for some reason, the US’s representative did not raise such an argument. the Eat concluded that the US, having waived its right to state immunity, was in breach of its obligation to consult. the Eat further found that the tribunal’s decision to make a protective award of 30 days’ pay was not perverse. the Eat did however agree that the tribunal had failed to give adequate reasons as to whether Ms nolan was an appropriate person to bring a claim. Specifically, it was unclear whether the tribunal had ruled that Ms nolan had been elected on to the lnEC “otherwise than for the purposes of” section 188 tUlR(C)a 1992. the case was remitted to the tribunal for clarification. Commentary this shows the value of using pressure to shame large entities into agreeing to take part in a formal process. Persuading bodies conscious of their public relations profile that running a particular argument (such as state immunity) would be deeply unattractive, can be very useful. United States of America v Nolan, UKEAT/0328/08/CEA
laW In BRIEf CBI redundancy proposals
THE CBI proposes shortening the statutory 90-day redundancy consultation period (where 100 or more employees are at risk of redundancy). The employer body believes the current situation prolongs uncertainty for individuals. This argument may be novel, but it is hardly persuasive. Employees facing redundancy need as much time as possible to challenge the employer’s proposals as well as to try to find new work. And a longer redundancy period clearly means more salary. Although the CBI’s proposals incorporate some suggestions on how to defer redundancies, the suspicion persists that many employers are using the downturn to dismiss employees unlawfully. Making someone redundant can often be a quick way for an employer to dismiss. Unlike performance or minor conduct issues, where employees are entitled to be warned and given a chance to improve, small-scale redundancies can lawfully be enacted within a few weeks of a redundancy exercise being announced. As many HR departments anticipate that employees accused of poor performance or conduct will go off long-term sick or will raise grievances in response, making a redundancy dismissal (generally with a termination payment) is seen as relatively painless. Also, although employers often fail to carry out a fair consultation and selection process, employee attempts to prove this face obstacles. For example, tribunals will not order the disclosure of redundancy scores awarded to other staff, unless the employee can prove that the selection process was a sham – a bit of a Catch-22 situation. Enabling reps to prevent redundancies or at least minimise them (ie by insisting on an extended consultation period) is the most effective way of limiting arbitrary decision-making by employers.
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Health and safety_news Unions back proposed bill to extend legislation to construction
Gangmaster licensing Bill for construction proposed Construction unions are backing a law currently going through parliament that seeks to extend existing gangmasters legislation to the construction industry. The Gangmasters Licensing Act 2004 (Amendment) Bill was proposed last month by Jim Sheridan, who originally moved the legislation to bring the Gangmasters Licensing Act (GLA) into existence. Unions argue that illegal gangmasters are supplying unskilled labour to major construction companies and their subcontractors to carry out skilled and dangerous work without taking into consideration the safety consequences. Bob Blackman, Unite national officer for construction, said: “We
are all fully aware of the dangerous environment that our members in the construction industry face. Migrant workers who come to this country for legitimate work are often lured into the twilight world of illegal gangmasters.” He added: “We must focus on the real villains in this case and that is the gangmasters. Unite has found that those who once suffered under poor agricultural working conditions are now experiencing the same problems in the construction industry.” Unions have unearthed a growing list of abuses of migrant labour in the UK construction industry, with the vast majority of abused workers supplied by agencies operating overseas. For example, workers on a
PFI hospital site in Nottinghamshire were being paid just £8.80 a week. Alan Ritchie, general secretary of UCATT, said: “If we are going to tackle exploitation and casualisation in the construction industry, it is essential that gangmasters are properly licensed and policed. It is important that the government recognises the ongoing injustices which construction workers face and backs this Bill.” The Gangmasters’ Licensing Authority was created in 2004, after the Morecambe Bay disaster, when a number of Chinese workers drowned. The legislation covered fish processing but not construction. The Bill to include construction will receive its second reading on October 16.
unions condemn ‘softly, softly’ approach in new hse strategy
CWU union calls for tough action by HSE
Communication workers criticised the Health and Safety Executive’s (HSE) new strategy (see Workplace Report, June 2009, p. 14) at the CWU annual conference last month. At a fringe meeting on the HSE’s strategy, around 150 communication workers, including safety reps, also criticised HSE’s reliance on voluntary action by employers and called for a more active enforcement role. Dave Joyce, CWU health and safety officer, said the CWU welcomed the strategy. However, he warned that the union will be looking for the HSE to back it up and “get tough on the employers, managers and directors who create risks and provide no controls – making workers sick, injured or killing them”. Joyce said: “The emphasis of the new HSE strategy should be on ensuring management meets its safety duties. Tackling management failure is key in reducing the number
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of workplace fatalities and accidents in the UK. There’s no place for a softly, softly approach to breaches.” Joyce added that HSE should provide union safety reps with more legal powers and intervene to ensure employers don’t victimise reps. He
said: “We currently have a CWU safety rep who’s been suspended for 10 weeks for no good justified reasons other than he was doggedly doing his job. That’s why CWU has been calling for greater legal rights and protection for safety reps for a decade.”
Stop this safety rep victimisation Unions are campaigning against the victimisation of a safety rep sacked just for doing her job. Penny Gower, a safety rep for the EIS education union in Scotland, has been summarily dismissed by Carnegie College in Dunfermline, after Gower undertook a workplace health and safety inspection, which is a core, legally protected, safety rep function. David Drever, former EIS president, said: “The EIS regards it as entirely
unacceptable for any employer, in today’s Scotland, to dismiss or otherwise victimise EIS representatives for taking part in legitimate trade union duties and activities. ...[The] EIS will continue to ensure that justice prevails and that no employer can escape the consequences of discrimination, victimisation or anti-trade union activity.” Email messages of protest to: mphilip@carnegiecollege. ac.uk
News in Brief Safety failures at turbine manufacturer
Vestas Blades, a manufacturer that makes onshore wind turbines, has been fined for health and safety breaches. The company was fined £10,000 and told to pay the HSE’s costs after it failed to prevent workers from being exposed to hazardous substances. Between 2005 and 2007, 13 employees suffered dermatitis after exposure to epoxy resin. Workers suffered through being allowed to use protective equipment wrongly and having safety glasses that did not protect all the face, through processing methods that did not minimise risk and through inadequate risk assessment.
Railways caught short on toilet provision
Toilet facilities for drivers are so bad on Britain’s railways that drivers often carry an empty plastic bottle, ASLEF train drivers’ union has said. The union said some freight depots only have a portaloo at the entrance, which can be four miles away. And however poor the conditions are for men, they are twice as bad for women. Keith Norman, ASLEF general secretary, said: “It proves to our less progressive colleagues that fighting for equal opportunities often benefits us all. We argue for toilet facilities for women and the knock-on is an improvement in the facilities for men.”
Tower crane register
The HSE will launch a consultation this month on the tower crane registration scheme, with a view to bringing in new regulation by April 2010. The demand for a register to improve the control and management of risks has been repeatedly made by safety campaigners, particular in the wake of crane disasters. See: www.hse.gov.uk/aboutus/ meetings/hseboard/2009/230609/ p-jun-b09-59.pdf
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Health AND safety_HSE monitor News in brief Nuclear safety
Nuclear power plants have had thousands of leaks, breakdowns or other events over the past seven years, but the Nuclear Installations Inspectorate (NII), part of the HSE, lacks the inspectors to police the industry adequately, according to a previously unseen official report. The document, written by the government’s chief nuclear inspector, Mike Weightman, and released under the Freedom of Information Act to the Observer newspaper last month, raises serious questions about safety in the industry. The report discloses that between 2001 and 2008 there were 1,767 safety incidents across Britain’s nuclear plants. About half were subsequently judged by inspectors as serious enough “to have had the potential to challenge a nuclear safety system”. In an accident at Sizewell A in Suffolk in January 2007, cooling water leaked from a pond containing highly radioactive spent fuel. The operator was not prosecuted for breaching safety rules, according to the NII, partly because its resources were “stretched”. The NII admitted to being 26 inspectors short of the 192 it needs to regulate existing facilities.
HSE ignored “for eight years”
The Health and Safety Executive (HSE) prosecuted an aerospace engineering company after it had ignored warnings from the safety body for eight years. Crest Engineering Company Ltd was prosecuted last month after HSE inspectors found safety guards missing or not in use on several “milling” machines used to shape metal. The HSE first served the firm with an enforcement notice in 1999 for a missing safety guard. When inspectors visited the site again in 2001, they served eight enforcement notices after finding safety guards missing on several machines.
work death statistics fall
Record low for work deaths, but more to do Unions and safety campaigners welcomed the fall in the official annual work death figures, but warned that there is still much to do. Provisional Health and Safety Executive (HSE) figures published in June indicated that at least 180 workers were killed between April 2008 and March 2009. This is down from 233 the previous year and 17% lower than the previous lowest total of 217, recorded in 2005-06. Unions welcomed the fall in work deaths. Brendan Barber, TUC general secretary said: “This is indeed good news but we should not be complacent; 180 workers still needlessly lost their lives at work last year. Every death is one too many and can be avoided.” He added: “Nor should these record low figures be seen as evidence that employers are taking more care. Falls in injury and death rates are usual during a recession because fewer new employees are being recruited and introduced into the workplace.”
Safety campaigners echoed these concerns. Mick Holder of the Hazards Campaign said: “The reduction in deaths is very good news indeed. However, it must be taken in the context that very many more people lose their lives because of work activity who are not recorded by the HSE, such as the huge number of people killed on the roads who are at work at the time or the thousands that die from asbestos diseases from
contact at work. There are also still worrying areas, such as the increasingly poor record of the waste and recycling industry.” The Hazards Campaign wants more resources for the HSE, more enforcement activity, full legal responsibilities for health and safety to be placed on company directors and stronger legal rights for trade union safety reps to ensure the downward trend continues.
HSE rules out further Worker Safety Advisors The HSE will not resurrect the Worker Safety Advisor (WSA) scheme, but it is planning to promote worker involvement in small businesses. The WSA scheme ran between 2004 and 2007. It involved union safety reps in peripatetic consultancy in hardto-reach industries. HSE chief executive Geoffrey Podger told the Work and Pensions Select Committee last month there were no plans to resurrect the
scheme as it had only ever been intended as an experimental “pump-priming” project. However HSE chair Judith Hackitt told the committee the safety body was working with the EEF manufacturers’ organisation and the Federation of Small Businesses to find firms to act as guinea pigs for training on worker involvement. The initiative, planned for next year, is expected to cost £4m over two years.
evidence on contractor payment scheme still uncollected
HSE failings exposed on construction fatalities UCATT construction union has seized on evidence revealed at the Work and Pensions Select Committee last month to raise concerns about the way the Health and Safety Executive (HSE) collects vital information following construction fatalities. Select Committee member Tom Levitt MP revealed that despite an HSE pledge in September 2007 to begin recording whether a fatally injured construction worker was working for a contractor under the notorious Construction Industry Scheme (CIS), that information was still not being properly processed.
Levitt revealed that recent answers made to Freedom of Information requests by UCATT about whether workers were working on CIS or not when they were fatally injured were wrong. In answer to UCATT’s FOI request the union was told that only four construction workers who were killed in 2008 were definitely working CIS and in two other cases it had not been possible to ascertain if workers were CIS. UCATT have proof that this gravely underestimates the mortality rates of CIS workers. UCATT said workers on CIS have all the characteristics of an employee
but none of the legal protections. They can be sacked at a moment’s notice and rarely complain about dangerous sites because of the fear of being sacked. Alan Ritchie, general secretary of UCATT construction union, said: “It is vitally important that this failure to collect crucial information has been exposed. The HSE will never properly address the issue while they continue to take an ostrich-like attitude to the problem and refuse to address the fact that the way the industry is organised leads to workers being killed and maimed.”
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health and safety round up news_bargaining
Health and safety round up LRD’s annual health and safety round up looks at new legislative developments as well as legal changes and government strategy regarding climate change commitments This year health and safety has been overshadowed by the economic downturn. There have been few major legislative changes, but some significant additions to health and safety law did come into force.The key changes that came into force over the last year were: • The Health and Safety Offences Act 2008. • Regulations for new workplace posters and leaflets, and fewer forms. • New road safety law affecting workrelated driving. • The CHIP 4 regulations. • The Damages (Asbestos-related Conditions) (Scotland) Act 2009. • Increased holiday entitlement. There have also been important court cases clarifying the Health and Safety at Work Act and the level of fines, the first corporate manslaughter prosecution took place, as well as other significant judgments on time off for union safety training, mesothelioma, work equipment, manual handling, working time breaks and stress (see box).
The Health and Safety Offences Act 2008. The Health and Safety Offences Act 2008 came into force on 16 January 2009. The Act extends the maximum £20,000 threshold for fines to more offences (13 out of 17, compared with 3 previously) and makes imprisonment available for 13 offences (previously there were 2). Unions welcomed the new law. The TUC said it was “long overdue”, but warned that its impact would be limited unless the courts imposed realistic fines for health and safety offences.
Simplification regulations The Health and Safety Information for Employees (Amendment) Regulations 2009 (SI 2009 No. 606), which came into force on 6 April this year implement some of HSE’s simplification proposals. The regulations introduced a new, easier to read version of the law poster that employers must display prominently in the workplace and a new version of its leaflet for employees. Organisations must switch to the new leaflets and posters by no later than 5 April 2014. Employers who keep the old poster after 6 April 2009 must make sure it is legible and keep the addresses of the enforcing authority and the employment medical advisory service up to date. The Factories Act 1961 and Offices, Shops and Railway Premises Act 1963 (Repeals and
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Modifications) Regulations 2009 (SI 2009 No. 605), which also came into force on 6 April this year abolish premises registration and the associated forms. They also remove the requirement to keep a general register under the 1961 Act.
Work-relating driving law Parts of the Road Safety Act 2006 came into force on 18 August 2008. The Road Safety Act 2006 (Commencement No. 4) Order 2008 (SI 2008 No. 1918) created the offences of “causing death by driving without due care and attention, or without reasonable consideration for other persons” and of “causing death by driving when unlicensed, disqualified or uninsured”. Drivers who kill while distracted by an avoidable activity at the wheel could face up to five years in prison. Avoidable distractions include: calling or texting on a mobile phone, drinking and eating; and applying make-up.
The CHIP 4 regulations. The Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 (CHIP 4, SI 2009 No.716) came into force on 6 April 2009. The regulations require chemical substances and preparations used at work to be classified according to their principal hazard. Suppliers of chemicals must give information about the hazards on labels (if the chemical is supplied in a package) and they must package chemicals safely. The CHIP regulations will gradually be replaced by the European Regulation on Classification, Labelling and Packaging of Substances and Mixtures – known as the CLP Regulation. The regulation implements the United Nations’ Globally Harmonised System (GHS), a more uniform global criteria for classifying and identifying hazardous substances. The CLP Regulation became law on 20 January 2009, subject to a lengthy transitional period. The regulation is directly-acting in all EU Member States, so it does not need to be transposed into UK regulations. The regulations become mandatory on 1 December 2010 for substances and 1 June 2015 for mixtures.
The Damages (Asbestos-related Conditions) (Scotland) Act 2009 The Scottish parliament passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which came into force on 17 June
2009. The Act provided that certain asbestosrelated conditions such as pleural plaques are actionable personal injuries and sufferers can therefore receive compensation. The Scottish government cited medical evidence from specialist Robin Rudd that, “people with pleural plaques are at risk of developing diffuse pleural thickening causing breathlessness, asbestosis of the lungs causing breathlessness, lung cancer which is usually fatal and mesothelioma, a cancer which can occur in the lining of the chest cavity or in the lining of the abdominal cavity which is almost invariably fatal, usually within 12 to 18 months of the first symptoms. People with pleural plaques who have been heavily exposed to asbestos at work have a risk of mesothelioma more than one thousand times greater than the general population. The risk for those more lightly exposed is less but still significant.” However the judgment remains in force elsewhere in the UK. In May 2009, the Ministry of Justice again delayed an announcement on the issue, but promised action before the summer recess.
Increased holiday entitlement. The Working Time (Amendment) Regulations 2007 (SI 2007 No. 2079) increased holiday entitlement to 5.6 weeks from 1 April 2009. A week’s leave is the same length of time as the working week. This means that someone working five days a week is entitled to 28 days’ leave, while someone working three days a week is entitled to 16.8 days’ leave. The changes are the result of union campaigning for all workers to benefit from paid bank holidays. However, there is no statutory right to bank holidays. Any entitlement to bank holidays is purely contractual.
Future developments There are a number of significant changes expected shortly in health and safety matters: • Consultation on outlawing “blacklisting” of union reps, including safety reps; • Consultation on making Workers Memorial Day official; • Consultation on the establishing of a crane register after union campaigning; • New first aid training arrangements are expected in October 2009.
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Health and safety – case law
Significant court cases in health and safety law There have also been important court cases clarifying aspects of safety law.Three recent cases have clarified important matters with respect to the Health and Safety at Work Act. In R v HTM Ltd [2007] 2 All ER 665, HSE prosecuted the firm after the death of two workers resurfacing a road. The Court of Appeal decided in 2007 that foreseeability was an integral part of reasonable practicability. In 2008 the case went to the Crown Court, which cleared the firm of breaching safety law. The judge said reasonable practicability had to be approached in the following stages: • Whether there was an appreciable risk to employees’ safety; • If there was a risk, what was the incidence of that risk; • How the risk had been addressed by measures already in place; • How effective and costly further measures would be. In the case of R v Chargot the judge reaffirmed that the burden of proof falls on the employer to show it complied with statutory duties, after a driver was killed when his dumper truck overturned. The Court of Appeal ruled that it was the risk to the health and safety of employees (or members of the public) that triggered liability under the Act and that it was for the prosecution to prove that that a given circumstance created a risk. Once this was established, employers had to prove they had acted reasonably to prevent or avoid the risk. The Court of Appeal also found that the prosecution must prove that the risk was real rather than simply hypothetical (R v Chargot [2008] UKHL 73. R v Chargot [2007] EWCA Crim 3032). The case was upheld in the House of Lords.
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The Court of Appeal further clarified the meaning of risk in R v Porter [2008] EWCA Crim 1271. A three year-old child was injured at school, but died from MRSA while in hospital. The headteacher of the school was convicted in relation to the child’s death, but this was quashed on appeal. The judge said that the risk had to be real, not “fanciful” or hypothetical.
Sentencing Two judgments by the Scottish equivalent the Court of Appeal this year on the appropriate level of fines for work-related deaths have implications for the rest of the UK. In HMA v Munro & Sons (Highland) Ltd [2009] HCJAC 10, the appeal court found that the original fine for a work-related death was too lenient, and increased it eight-fold to £30,000. The case involved the death of a car passenger, who was killed when a 30-tonne wheeled loader rolled off a trailer on the A9. The judge said Munro should be punished for its culpable failures. In LH Access Technology Ltd and Border Rail and Plant Ltd v HMA [2008] HCJAC 11, the court dismissed an appeal by two rail maintenance firms against fines of £300,000, which amounted to 10% of their turnover. The firms were fined following the death of a maintenance worker at Edinburgh station in 2006. The judge said that given the serious failure of duty, the fines were reasonable. The cases are particularly significant for the guidelines from the Sentencing Advisory Panel, where 10% was considered the upper limit for corporate manslaughter cases.
Time off for training This year an EAT found that an employer had not breached the regulations after a parttime safety rep attended a stage 3 course on a day she would not normally work. Ms Calder, a PCS safety rep, normally worked on Tuesdays, Wednesdays and Thursdays. She applied to attend the course (which was on Friday) but was refused permission. The EAT found that because the course did not take place during working hours, regulation 4(2) did not come into play (Calder v The Secretary of State for Work and Pensions UKEAT/0512/08/LA).
Mesothelioma Unions won a landmark High Court case on the rights of asbestos victims to compensation in 2008. The Unite general union resisted a legal challenge by insurance companies which could have deprived mesothelioma sufferers and their families of compensation.
The High Court ruled on 21 November 2008 that employers’ liability insurers are liable to pay compensation for mesothelioma caused by exposure to asbestos in the workplace if they insured the employer at the time the asbestos exposure occurred. Known as the mesothelioma “trigger issue” test case, a number of insurers argued the policies they sold, to insure employers against liability for workers who were injured or suffered illness due to work, were “triggered” by the development of the disease rather than by the exposure to asbestos. (Durham v BAI (Run Off) Ltd and other cases [2008] EWHC 2692 (QB))
Work equipment A case clarified what counts as work equipment. The House of Lords reversed a decision of the Scottish Court of Session, in the case of Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46. A worker repairing a door closer was injured by it. The Court of Session, following Hammond v Commissioner of Police of the Metropolis [2004] ICR 1467 held that the door closer was not “work equipment” within the meaning of the PUWER regulations. The House of Lords held that the door closer was apparatus for use at work and that this was sufficient, and found the employer liable to maintain it.
Manual handling A Court of Appeal judgment this year confirmed not only that employers have a duty to carry out a risk assessment for manual handling, but they also have a duty to take positive action to reduce the risks identified (Donna Egan v Central Manchester and Manchester Children’s University Hospitals NHS Trust [2008] EWCA Civ 1424).
Stress In 2008 the Court of Appeal handed down an important judgment in a work-related stress case, Dickins v O2 plc [2008] EWCA Civ 1144. The judge reiterated that employers cannot meet their duty of care simply by providing a counselling service. More importantly, the judgment suggested that an employer might be liable for the whole stress-related claim even when other factors (such as domestic problems) have contributed. The judge cited a clinical negligence case, Bailey v Ministry of Defence [2008] EWCA Civ 883, in which the Court of Appeal found that a claim might succeed in full if the evidence suggested that “but for” the employer’s breach of duty, the ill health would not have occurred.
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health and safety – climate
Climate change: law and strategy In 2008, the Climate Change Act committed the UK to cut emissions by at least 34% by 2020 and 80% by 2050. It also created a carbon budgeting system to cap emissions over five year periods and established an expert body, the Committee on Climate Change. The Act made the UK the first country to create legally binding targets. The Climate Change (Scotland) Bill is currently progressing through the Scottish parliament. The Bill will introduce a statutory target to reduce Scotland’s greenhouse gas emissions by 80% by 2050, with an interim target of 50% emissions reductions by 2030, and establish a framework of annual targets. The Welsh Assembly is publishing its Climate Change Strategy for Wales in 2009, which will include targets on cutting emissions. In 2008, the European Commission proposed targets to tackle climate change, known as 20/20/20. This included: • a unilateral EU-wide target of 20% emissions reduction by 2020, to be increased to 30% if others (notably the USA) follow suit; • a 20% renewables target of total energy supply by 2020; •a 20% energy-efficiency target for the same period.
Carbon Reduction Commitment The Carbon Reduction Commitment (CRC) is a UK-wide scheme intended to introduce mandatory emissions trading for large non-energy intensive commercial and public organisations in April 2010. It aims to reduce carbon dioxide
Green budget measures • £6.5 billion in capital support
through the European Investment Bank and other means; • An unspecified ‘funding mechanism’ for up to four carbon capture demonstration projects (around £1billion for each plant); • £1.4 billion for new green energy supply and energy efficiency; • £525m of new financial support over the next two years for off-shore wind power, funded through the renewables obligation; • £435m to deliver energy efficiency measures for households, businesses and public buildings; •£70 million for decentralised smallscale community low-carbon energy. The TUC’s budget proposal called for a £16.8 billion public works programme targeted primarily at green industries.
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emissions by over 4 million tonnes a year by 2020. Allowances will be sold at a fixed price of £12/tCO2 during the introductory phase. The CRC is intended to be revenue neutral, with organisations that perform well rewarded financially from the funds raised through the sale of allowances. The CRC will directly involve around 5,000 large commercial and public sector organisations including supermarkets, hotel chains, universities, water companies, NHS bodies, local authorities, government departments and further and higher education institutions, with 20,000 employers likely to be affected in some way. It will cover organisations whose 2008 half-hourly metered electricity use is above 6,000 MWh – that is, organisations with an electricity bill of roughly £500,000 per year. DEFRA (the Department of the Environment, Food and Rural Affairs) has announced that state-funded schools in Great Britain (not Northern Ireland) will be included in the scheme but not individually. State school emissions will be included under the umbrella of their local authority.
NHS carbon reduction The NHS Carbon Reduction Strategy for England was launched in 2009, with similar proposals planned in Scotland, Wales and Northern Ireland. The NHS Sustainable Development Unit said the health service in England has a carbon footprint of 18 million tonnes of CO2 per year — over 3% of total carbon emissions. As part of the strategy, NHS organisations are committing to reducing their carbon footprint by 10% by 2015. Trusts can determine their own methods of reducing emissions. The report Saving Carbon, Improving Health states that, “Staff groups and Trades Unions are crucial in helping the design and implementation of environmentally sensitive travel plans”.
Adaptation In 2008 the government launched its Adapting to Climate Change Programme. The first phase (2008-2011) is made up of: providing the evidence; raising awareness; ensuring and measuring progress; and government policy on embedding adaptation. Phase 2 will be called the National Adaptation Programme. This is a requirement of the Climate Change Act and will be based on the results of the National Climate Change Risk Assessment. The DEFRA framework document, Adapting to climate change in England (2008), noted the work done by the TUC on adaptation. In June 2009, DEFRA launched a consultation on the use of its Adaptation Reporting
Low carbon industrial strategy The government has developed a low carbon industrial strategy. In 2009 the Department for Business, Enterprise and Regulatory Reform (BERR) launched the government’s strategy, designed to encourage industry to invest in bringing low carbon goods and services to market. In particular the strategy emphasises: • Energy efficiency to save businesses, consumers and the public services money; • Putting in place the energy infrastructure for the UK’s low carbon future – in renewables, nuclear, carbon capture and storage and a ‘smart’ grid; • Making the UK a global leader in the development and production of low carbon vehicles; • Ensuring that skills, infrastructure, procurement, research and development, demonstration and deployment policies make the UK the best place to locate and develop a low carbon business. BERR estimated that the global market for low carbon environmental goods and services was around £3 trillion in 2007-08, with the UK’s “environmental economy” estimated at over £100 billion. It argued that nearly 55,000 firms were active in the sector in the UK, employing over 881,000 workers. Of those jobs, 192,000 were in the environmental sector (pollution control, waste management and recycling), 257,000 in the renewables sector and 432,000 in the emerging low carbon sector. Alternative fuels (including batteries and nuclear) account for 162,000 jobs, building technologies (including windows, doors and insulation) 107,000 jobs, alternative fuels for vehicles 104,000 and wind energy 87,000. The strategy also predicted that 400,000 jobs could be created in eight years in low carbon and environmental goods and services. Power (arising from the Climate Change Act), which will require over 100 organisations providing a public service, including those responsible for essential services and infrastructure, to report on the risks climate change poses to their operations and the plans they have in place to respond. For the first time government departments will have to publish their plans to adapt by spring 2010.
Future developments The government is consulting this summer on arrangements employers have in place for reporting their greenhouse gas emissions. Although reporting is voluntary, this process may make it easier for union reps to work out their organisation’s performance. The Carbon Reduction Commitment is due to come into force in April 2010. The government is consulting on arrangements, including on employee involvement, which are likely to affect many sectors with high levels of unionisation. The Copenhagen talks in December 2009 may set targets for emissions reductions that will impact on UK employers.
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London weighting L
London Weighting and the London Living Wage The campaign for a London Living Wage, underpinning London wages for the lowest paid, has achieved some successes, while the London Weighting allowance may be coming under pressure during the recession London Living Wage The London Living Wage (LLW) was introduced as an attempt to update London Weighting with a focus on the lowest paid, particularly when the use of an agreed formula to calculate London Weighting fell into disuse. London Citizens, who campaign for the LLW, list nearly 100 employers who are pledged to pay at least the LLW to their workers. They estimate that since its launch in 2001, the campaign had put almost £25m into the pockets of low-paid workers by the end of 2008. Its Living Wage Employer awards require employers not only to pay the living wage but also to give at least 20 days’ paid holiday a year plus bank holidays, and at least 10 days’ sick pay on full pay per year, as well as allowing free access to trade unions. This year the London Living Wage figure, produced annually by the Greater London Authority and set in May, is £7.60 per hour. This is calculated to ensure a “secure margin ensuring that the person involved does not fall below the level of poverty wages because of unseen events.” The GLA lists just 29 organisations implementing the LLW, 8 in the public sector, 12 commercial organisations and the rest “third sector” organisations such as charities. And despite the GLA assertion – backed by Mayor Boris Johnson – that “all members of the GLA Group” including contractors, are paying the living wage, Transport for London has consistently fallen foul of the commitment. The RMT rail union has been campaigning among contractors engaged in cleaning and maintenance for London Underground. One of the most glaring examples is ISS, whose staff working on a London Underground contract have rates starting from £5.73 an hour (National Minimum Wage (NMW)). The gap between NMW and the living wage is £1.87 per hour. Translated into an annual figure this represents £3,598 a year, or £281.20 a week on a standard 37-hour week. One of the successes of the LLW campaign is Queen Mary, University of London. Its cleaning services were all contracted out before the campaign began in 2005 with research into the sub-contracted workforce. The campaign ended in 2008 with cleaning work being moved back in house. Along the way, workers all saw their pay increased to the London Living Wage along with improvements to holiday entitlement and sick pay.
With employers looking to trim wage bills in a range of different ways during the current economic crisis, it is likely that allowances such as London Weighting may also be affected. Agreements on the Labour Research Department (LRD) Payline database that include London Weighting suggest that in broad terms, the allowance has followed the trend for wages, with greater consistency of increase levels during 2008 but in 2009 a divergence, with increases not being awarded at all in some organisations, alongside others where good percentage increases persist. As London Weighting is linked to basic pay in some agreements, but negotiated separately in others, this gives scope for a range of responses to recession. However, it is also the case that some employers leave London Weighting unchanged for a number of years as normal practice, making the precise pattern of the way that the downturn is affecting this payment difficult to assess. In sectors such as retailing the allowances tend to be low and only get increased intermittently; in finance most employers have not increased allowances this year, with Northern Rock being one of the few exceptions. To the extent that employers pay London allowances because of recruitment and retention problems the effect of the recession is, of course, to at least diminish if not remove these so there is little incentive to increase the allowances. In at least one instance the allowances are in effect being decreased; at Nationwide Building Society a new location allowance was introduced from 1 October 2008. The effect of this was to reduce the highest allowance payable in inner London to £4,550 a year whereas under the previous scheme Zone One (most of inner London) attracted a premium of £6,000 a year. Staff in receipt of the former allowances retain them unless they change location.
London Weighting table The data on allowances has been categorised by date and grouped into single or inner London allowances, outer London allowances, fringe London and the further south east region. The full data, covering 114 agreements
from organisations where LRD has the latest pay information, can be found on Payline at www. lrd.org.uk/payline/ If you need further assistance or have forgotten your password, contact LRD on 0207 902 9811 or pay@lrd.org.uk. Once again this year, the Met Police have the highest allowances in the public sector: in fact the police receive both a London Weighting payment and a London allowance (although only entrants post-1994 receive the allowance of £4,338). Springfield Fuels, based in Preston, top the table for the private sector. Most allowances in the public sector have increased by between 2.5% and 3.5% over the past year. In the private sector, the range of increases is wider, and where increases are given these may apply only to some sections of staff. London Weighting or London allowances remain controversial in some cases – with disparities between the way different groups are treated often by the same employer (see box on Parliament, for example). The argument for London Weighting rests on the higher cost of living compared with the rest of the UK, a difference the recession has done little to reduce. House prices in London, for instance, average £295,325 compared to an England and
A tale of two Commons Stories abound of the generosity with which MPs treat themselves. But the treatment catering staff in the Commons receive is in stark contrast. Workers in the refreshment department were due a pay rise in April 2008 but have only just received it this month. The belated deal will increase basic rates by 3% for 2008 and 2.5% for 2009. An apprentice chef received £9,488 a year before these increases are taken into account. There is also no separate allowance for London Weighting for catering staff. This contrasts with MPs’ own arrangements providing a salary of £64,766 a year, plus a London Costs Allowance of £7,500 a year. And this is before any additional expenses they may claim, of course.
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London weighting Wales average of £142,828, a soaring 94% higher. Prices dropped over the year in London by 16.1%, only 0.2 percentage points more in London than elsewhere in the country. A few London boroughs are now also showing the first signs of housing prices rising again, for example Brent, with a monthly rise of 1.8%. Rents are little better. Housing Association properties in London average £85.54 per week, compared to a national average of £69.95. Local Authority housing on average costs £79.72 a week in London but £64.38 outside London, a 24% gap. The largest difference is in the private rental sector, with average rents in London of £194.10 per week and a national average of just £125.90, a 54% difference. The other major factor in additional costs for those working in London is travel to work. People working in London spend on average 44 minutes on their journey to work, while the UK average is 27 minutes. Weekly expenditure on fares and other costs is £10.40 in the UK as a whole, but in London this rises to £21.10 a week, more than twice as much. The old London Weighting formula also called for “additional wear and tear” caused by longer journey times to be taken into account – in other words payments to cover not just the cost of fares but an element to recognise the extra time spent on journeys as well.
Regional allowances Systems for awarding allowances vary greatly. Some agreements, notably in the public sector, have different pay grades for London and the rest of the UK, rather than an allowance. Some organisations combine allowance and regional grades, and in some the allowance is tied to specific recruitment and retention difficulties. Examples of organisations with regional grades include AXA, the Bank of England, the Learning and Skills Council, and the Cabinet Office. In the latter, London grade premia range from £2,053 to £8,683 above salaries elsewhere.
The union response Several unions adopted a target figure of £4,000 a year for London allowances some years ago; whilst some progress has been made, the majority of allowances fall short of this. In the current climate most unions are fighting to retain existing allowances. The gains made on the London Living Wage rank amongst the few successes. The conflicting position of unions and employers remains, with unions on the whole pressing for allowances based on additional costs of living whilst most employers are only willing to pay allowances based essentially on recruitment and retention difficulties. The result of this focus is a plethora of different allowances for different grades.
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Agreement
Date
Allowance (inner or single London)
% increase
Outer London
Allianz
01/05/09
4008
2.6
1953
HBOS (Lloyds Banking Group)
01/05/09
3450
0
2950
Southern
05/04/09
1704
0.25
769
Unity Trust Bank
01/04/09
4000
Royal & Sun Alliance
0104/09
3750
0
1725
Fringe London
Other south east
1260 1200 366
Aviva (Norwich Union)
01/04/09
3710
0
1725
Barclays
01/04/09
3550
0
1670
750
Ecclesiastical Insurance
01/04/09
3453
0
AAH Enterprise (& Trident)
01/04/09
2798
4.25
NHS Agenda for Change
01/04/09
3947
2.4
Probation Service
01/04/09
3800
2.3
OFSTED
01/04/09
3000
n.k.
RCN Publishing
01/04/09
1541
2.75
Springfield Fuels
01/04/09
4756
2.0
Network Rail (Maintenance)
01/04/09
2400
n.k.
1390
955
Phoenix Healthcare
01/02/09
1764
0
Electrical Contracting JIB
05/01/09
3607
4.6
3516
5.46 2853/ 2140
1283
Engineering Construction (NAECI) NJC Northern Rock
01/01/09
4280
3.5
National Australia
01/01/09
3595
0
2311
DHL Freight ECO
01/01/09
1749
2.0
1493
592
The City Lit
01/10/08
3358
3.2
2065
811
Tesco Blue Book
01/10/08
1434
n.k.
2338
926
Metropolitan Police
01/08/08
3294
5.27
1790
Valuation Office
01/08/08
1050
0
1291
Police
01/07/08
6501
0.8
Home Office
01/07/08
3020
0
1240
British Waterways
01/07/08
3642
3.5
1854
1438
770
854 2000
1000
Notes: 1. All values are in £ sterling, and have been rounded to the nearest whole number where necessary. 2. Allianz only increased the inner London allowance. 3. Northern Rock increased other large towns allowance by 3.6%. 4. The only increase for Police was the London Weighting; the London Allowance was unchanged as were the fringe and other south east allowances. 5. Metropolitan Police staff increased inner London allowance by 5.27% but outer London allowance by 7.57%. 6. This table presents a selection of London Weighting and allowance information. More information for a wider range of organisations is available on Payline. Allowances for other regions are also recorded, including other large towns and cities in the UK. Go to www.lrd.org.uk and click on Payline.
July 2009 Workplace Report 19
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news_bargaining
Labour Research Department
WORKPLACE
Editor Rebecca Johnson
report
Staff writers Gabriel Barton Ali Brown Lewis Emery Lionel Fulton Paul Hampton Neal Moister Stephanie Peck Clare Ruhemann Dave Statham
Workplace Report is published 11 times a year by the Labour Research Department, 78 Blackfriars Road, London SE1 8HF tel: fax: email: web:
020 7928 3649 020 7902 9815 pay@lrd.org.uk www.lrd.org.uk
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LRD Payline
If you find Workplace Report useful, you may be interested in another of our services: LRD Payline, an internet database allowing users to compare pay and conditions across a range of industries. Based on 2,200 collective agreements, with more being added all the time, LRD Payline can be accessed from our website (www.lrd.org.uk) and from some union sites. To produce LRD Payline, we analyse agreements supplied by union reps across the country, and input the key elements into a database. Pay increases, pay rates, hours, holidays, regional allowances and maternity/ paternity arrangements are already covered, and other areas will be included in the future. Workplace Report uses this material in some of its articles and surveys, but LRD Payline has the advantage of always being up to date. Users can compare, for example, their own pay increase with others in their industry or region. They can widen or narrow the search as much as they want – and if they find an agreement of particular interest, a single click provides the full picture. For many activists, access to LRD Payline is free. The service is paid for at national level, and a number of unions – including Unite, UNISON, the GMB, the RMT, TSSA, PCS and Community – make it available to all their activists. If you are a member of one of these unions, email pay@lrd.org.uk for details and a password.
Main topics featured in Workplace Report in the past five years adoption leave see maternity leave accommodation allowances 52 11/07 age discrimination 39 09/06 agency workers 67 03/09 apprentices and apprentice pay 38 07/06 64 12/08 69 05/09 asbestos 44 02/07 bereavement leave 56 03/08 bonuses and incentive payments 30 11/05 bullying 10 01/04, 20 12/04 callout payments 39 09/06 European companies 7 10/03 carers 47 05/07 car industry 67 03/09 climate change 70 06/09 corporate manslaughter/homicide 56 03/08 corporate social responsibility 14 05/04 disability audits 43 01/07 drivers’ pay and hours 4 06/03, 15 06/04 drug/alcohol policies 21 01/05, 61 09/08 employee assistance schemes 9 12/03 employment contracts 22 02/05 employee engagement 70 06/09 environmental action 31 12/05, 44 02/07 equal pay 16 07/04, 26 06/05, 66 02/09 equal pension rights 16 07/04 European bargaining 10 01/04, 21 01/05,
32 01/06, 43 01/07, 54 01/08, 65 01/09 finance sector pay 19 11/04 first aid provision 45 03/07 flexible working 24 04/05 harassment 10 01/04, 20 12/04 health and safety review 17 09/04, 27 07/05, 38 07/06, 49 07/07, 60 07/08, 71 07/09 homeworking 69 05/09 information & consultation 14 05/04, 35 04/06, 58 04/08 learning reps 36 05/06 London weighting 16 07/04, 26 06/05, 37 06/06, 48 06/07, 59 06/08, 71 07/09 low pay 28 09/05 maternity leave 13 04/04, 25 05/05, 46 04/07 meal allowances 50 09/07 monitoring and surveillance 23 03/05, 45 03/07 overtime 33 02/06 paternity/parental leave see maternity leave pay protection 28 09/05 pay review bodies 23 03/05 pay round analysis 18 10/04, 19 11/04, 24 04/05, 29 10/05, 35 04/06, 40 10/06, 41 11/06, 46 04/07, 51 10/07, 52 11/07, 58 04/08, 62 10/08, 68 04/09 pensions 7 10/03, 12 03/04, 32 01/06, 37 06/06, 59 06/08
psychometric testing 63 11/08 public sector pay 17 09/04, 66 02/09 redundancy policies 41 11/06, 60 07/08 religion and belief discrimination 47 05/07 retirement policies 11 02/04, 50 09/07, 68 04/09 safety reps 30 11/05 service-related pay/leave 54 01/08, 55 02/08 sexual orientation law 10 01/04 shift work 8 11/03, 20 12/04, 31 12/05 42 12/06, 53 12/07, 64 12/08 sickness absence policies 15 06/04, 53 12/07 single status in local government 27 07/05 smoking 48 06/07 standby payments 39 09/06 stress at work 9 12/03, 34 03/06 teleworking 36 05/06 time off for union duties 42 12/06 trans workers 49 07/07 travel allowances 11 02/04 utilities 25 05/05 victimisation of union reps 33 02/06 violence at work 55 02/08 voluntary sector 22 02/05 whistleblowing 34 03/06 women’s health and safety 12 03/04 working time 61 09/08 young workers’ pay 9 12/03
20 Workplace Report July 2009
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