Trade unions – three recent developments

There have been three recent developments concerning trade unions should be of interest to HR professionals, especially for those of you working for a unionised workplace. First, as the Guardian reports, membership has risen for fourth year in a row. Government figures show an increase of 228,000 in public sector offset by a decline of 110,000 among private sector workers. They report how after a steady decline in membership lasting more than three decades, the number of trade unionists has climbed from 6.2 million to its current level over the past four years. It is, however, only half of its peak level of 13.2 million reached in 1979, the year Margaret Thatcher became prime minister. So why the rise? I phoned Sarah Ashberry to find out:

Sarah Ashberry: “Yes, I think these new figures have confirmed what I've kind of noticed, anecdotally, through working with clients in this period. There has been a revival, not just in membership, but also in activity, and certainly at the onset of the pandemic, back in April 2020, when there was a lot of change to workplaces up and down the country and things were, you know, perhaps rather chaotic for a period, there was actually a sort of spike in union activity in that period and a number of, I think, unofficial walkouts, as well as like general increased activity with unions of other kinds. The membership rise seems to be in the public sector largely, and probably is accounted for by, for example, schoolteachers who have found themselves kind of on the front line of dealing with COVID issues at work. So, it may be those clients operating the private sector haven't noticed a membership increase, but it could be that, in fact, what COVID has done is stem the decline in union membership in the private sector which is the sort of long term trend that we're seeing. So, while numbers in absolute terms might not have gone up in the private sector, it may be that the decline has slowed.”

Joe Glavina: “Do you think employers will notice any difference? Will it have an impact do you think?”

Sarah Ashberry: “I think it's very likely that our clients and employers will notice this because I think unions have just become more confident, and issues such as health and safety at work are absolutely at the forefront of everybody's minds, including in the types of workplaces where health and safety at work has never been a particularly hot topic but now is and it’s something that everyone is concerned with. So, I think that's given unions confidence to have more conversations in the workplace and it's likely that there will be more activity as well as more members.”

The second issue to report is the level of legal protections afforded to trade unions and employees while participating in industrial action – that’s long been a highly politicised issue and the subject of a lot of litigation. The news is the EAT has handed down a ruling in a case called Mercer which broadens the scope of the protection enjoyed by workers. It says that taking steps to prepare for, and take part in, industrial action, does come within the scope of trade union activities for the purposes of section 146 of the 1992 Act – that’s the section that protects workers from detriment connected with trade union activities.  Back to Sarah:

Sarah Ashberry: “Well, this is a really interesting case on trade union detriment. The part of the law that protects people like Mrs. Mercer is section 146 of TULRCA and what that says is that if you are a trade union rep like her, she was a workplace rep, and if you're conducting your trade union activities at an appropriate time, then you should not be essentially penalised for that. Now, it looks as if Mrs. Mercer was because she was very active in the trade union, Unison. It was a period of dispute and industrial action and in the lead up to strikes she was engaged in various activities including sort of organising the strikes in advance, coordinating other members, she also gave a media interview, and then when the strike day came around, she went on strike herself. Now, unusually, in this case the employer has suspended her for these activities, and she then got a written warning under the disciplinary procedure which was later taken away on appeal, but she nonetheless brought a claim about that based on the actual suspension being an act of detriment in itself. So, with these cases, it's interesting because you never get the whole facts and there may have been more to this case than meets the eye, but it seems that some of what she was suspended for is what I would call ‘bang on’ trade union activity. So, for example, the work she did in the lead up to the strike, helping to coordinate and plan for that strike, that has always been, and still is, recognised as trade union activity and so if an employer causes someone a detriment because of that, then that is likely to be found to be in breach of the law. So that's not new. What was new about this case is that the suspension was also for her actual act, on the day of the strike, of participating in the strike action and it has always been understood by employment lawyers that actually participating in industrial action falls outside the protection that's normally afforded under 146. So, we would normally have advised employers that in theory you can discipline someone with impunity because the person cannot rely on section 146 afterwards. This new case has changed that, but I think I'd also say that, regardless of what the law does or doesn't say, it's very unlikely that we'd advise a client to suspend somebody for taking part in industrial action because, if nothing else, this is not a step that is likely to help you to resolve the dispute. It's quite an incendiary step and, I think, quite unusual. So, I think it's probably also fair to say the facts of this case are quite unusual.”

Finally, the third development to tell you about is a change to legislation affecting the accountability of trade unions. The government has confirmed that it will be implementing the remaining parts of the Trade Union Act 2016 which gives the regulator, the Certification Officer, additional powers. These include:
 
Section 17 – Increased investigatory powers and the power to act without an application; and
Section 19 – Power to impose financial penalties following a finding against a union

The Government’s press release says the changes will reassure union members by ensuring unions uphold high standards. It means the regulator will be able to respond when a third party raises concerns that a union may have breached its statutory duties and will be able to begin an investigation where they suspect a breach themselves. It means that for the first time employers would be able to report a trade union to the regulator. So back to Sarah for her thoughts on that:

Sarah Ashberry: “This is part of a package of measures with the Trade Union Act which were essentially bad news for unions, good news for employers perhaps, and it has taken a while for these particular provisions to kick in and I think they're going to be coming in April 2022, so this isn't a change that's instantly coming in now. Really it is to ‘beef up’ the powers of the regulator and that's happening in a number of ways. One of the things that's happening is that they're widening out the scope of who can make that initial complaint to the regulator about a union. Historically, it has always been only open to a member of that union themselves to proceed and instigate a complaint with the regulator and now that's been widened out, so a third party can which means, I guess, an employer could set that in motion and instigate the complaint themselves. I think it's fair to say, though, that the types of complaints that would be appropriate to take to the regulator are quite narrow. So, it wouldn't be a complaint about the fact that the union was in dispute with you or what the union may or may not be doing against you, as an employer. It's got to be within the narrow confines of what the regulator will look at. So, it's like the conduct of the union itself.”

Joe Glavina: “So why might an employer take that step against a union? They could just leave it to the member.”

Sarah Ashberry: “Well, good point, and maybe they won't. I think it's fair to say this is probably not going to be something that is utilised every day. I think it would be a rare set of circumstances, but I suppose, you know, there are very bitter disputes out there and it may be that employers are keen to use every part of the armoury at their disposal if they're engaged in a sort of a long running dispute with the union. So, I can imagine that this might be something that they would look at.”

The case we mentioned earlier - on the legal protection for workers taking steps to prepare for industrial action - is the EAT’s decision in Mercer v Alternative Future Group Limited. We have put a link to the judgement in the transcript of this programme.

LINKS
- Link to case report: Mercer v Alternative Future Group Ltd (EAT)