Following our ERA's Tour in Part 1 and our =ities Tour in Part 2, we now offer in our third and final part of our pick of the new 2024 legislative provisions and case law now turning to collective issues.
The Employment Rights Bill 2024-25 (ERB) contains significant provisions which will strengthen trade union rights, simplify the statutory recognition process, and strengthen collective bargaining including simplifying requirements and lowering thresholds in relation to strike ballot (taking us back to the pre 2017 position), and remove the minimum service level legislation. The Bill also proposed to remove the 'at one establishment' requirement for triggering collective redundancy consultation. See our Employment Essentials: Employment law changes 2024 tracker for more on the proposed changes under the Bill.
For now, we have a look at the 2024 trade union and TUPE lessons with our 2024 ReUnion Tour.
Our 2024 "ReUnion Tour"
Trade unions
2024 has been a momentous year for trade unions. As we await the passage of the ERB, we reflect on the 2024 Trade Union top 2024 Supreme Court hits.
Don't strike back in anger
In Secretary of State for Business and Trade v Mercer, the Supreme Court made a declaration of incompatibility in relation to the lack of statutory protection from detriment for taking part in lawful industrial action (for example, the withdrawal of discretionary benefits). The Court found that s146 Trade Union and Labour Relations (Consolidation) Act 1992, which protects workers from detriment for taking part in trade union activities, did not provide protection from detriment for participating in lawful strike action.
The Supreme Court held that this lack of protection was incompatible with the right to strike under Article 11 of the European Convention on Human Rights. An employer's right to impose any sanction it chooses, short of dismissal, for participation in lawful strike action nullifies the right to strike, as employees are unable to strike without exposing themselves to detrimental treatment, and in that sense s146 both encourages and legitimises unfair and unreasonable conduct by employers.
As s146 cannot, in its current form, be read in conformity with Article 11, in April the Supreme Court made a declaration of incompatibility under s4 Human Rights Act 1998. It is now up to Parliament to rectify the law, which is being done under the provisions of the Employment Rights Bill 2024-25.
Half a corrected clause away
In RMT and Unite v Tyne and Wear Passenger Transport Executive T/A Nexus, the Supreme Court held that it is possible for the written record of a legally unenforceable collective agreement to be rectified where, due to a mistake, it does not accurately reflect what the employer and the union representatives agreed. However, as doing so would affect legal rights or obligations between employees and their employer, any such claim for rectification needs to be brought against the affected employees rather than the unions. The Supreme Court also confirmed that although employment tribunals cannot make an order for rectification, where a relevant mistake is shown, a document can be treated as if it had been rectified for the purpose of determining the parties' legal rights, as is the approach in civil courts.
Checkoff Supernova
In Secretary of State for the Department of Environment, Food and Rural Affairs v Public and Commercial Services Union and two other cases, the Court held that trade unions have third party rights under the Contracts (Rights of Third Parties) Act 1999 to enforce a 'check-off' facility that had been removed from the employment contracts of civil service employees by three Government departments.
But note that on the legislative front, with effect from 9 May 2024, a new s116B was added to the Trade Union Act 2016 under which relevant public sector employers will only be able to operate check-off systems as long as both:
- Affected workers have the option to pay their trade union subscriptions by another means.
- Arrangements have been made for the union to make a reasonable payment to the employer in respect of its operation of the check-off system.
S116B will, however, be short lived as it is to be repealed under the Employment Rights Bill 2024-25.
Wonderclause
While covered in Part 1 of our year review, 'the ERA's Tour', the unions also had a fourth big Supreme Court win in 2024. In Tesco Stores Ltd v USDAW and ors, with the Supreme Court restoring an injunction preventing the supermarket from using fire and rehire to withdraw a collectively agreed contractual benefit that it had previously described as 'permanent'. Worth a second mention as after all it's a wonder clause!
TUPE
Next on our ReUnion tour, we have a look at the TUPE legislative and case law developments.
Little by little exception
On the TUPE consultation front, the existing exception allowing micro businesses to consult directly with affected employees if there are no existing appropriate representatives in place (for example, if there is no recognised trade union) was expanded. For TUPE transfers taking place on or after 1 July 2024, the exception will also apply where:
- "the employer employs fewer than 50 employees" or
- "there are fewer than 10 transferring employees".
The existing requirement that there are no existing appropriate representatives remains.
She's Elected
In a late entry December judgment this year, we have a useful reminder from the EAT of the Oxford University v Humphreys principle. Under this principle, if the employee elects to object to the transfer by reason of a substantial change in working conditions to their material detriment, the contract is to be regarded as having been terminated for that reason and the employee shall be treated as having been dismissed by the transferor.
In London United Busways Ltd v Marchi, the EAT clarify that notwithstanding an employee's purported election not to terminate the contract with the transferor, provided there is an elected stated objection to transfer by reason of a substantial change in working conditions to their material detriment, they are treated as having been dismissed by the transferor and not a deemed termination by law.
Stop tearing your hair out
Also from the tribunals, we learned:
- Something all employment lawyers know – TUPE is complex! It is possible for a transfer to constitute both a business transfer and a service provision change (SPC) as the two are not mutually exclusive. But an assessment needs to be carefully made. In Mansfield Care Ltd v Newman and others, the EAT found a tribunal could not, without proper explanation, conclude that there was a business transfer of privately funded care home residents and at the same time a SPC of those who were socially funded.
- A re-organisation of NHS clinical commissioning groups did not give rise to a TUPE transfer as the purchasing or commissioning of goods or services does not in itself constitute an economic activity (Bicknell v NHS Nottingham and Nottinghamshire Integrated Commissioning Board – EAT, this case is pending further appeal).
- TUPE does not transfer a transferor employer's liability for harassment where the perpetrator transfers under a TUPE transfer, but the victim of the harassment does not (Sean Pong Tyres Ltd v Moore – EAT).
And finally, the 2024 'Nice Try' Award
and the winner is...the claimant in Aylmer v Dnata Catering
... for attempting to bring a claim that his line manger's name alone amounted to sexual harassment. The claimant objected to his line manager using the shortened version 'William' as was tradition in his family, of "Willy". Unsurprisingly, the claim was dismissed.
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