The Right to Organise (L8)

Question 1

What are the positive and negative aspects of the right to organise?

Answer 1

Positive aspect: the state must do something to protect it.

Negative aspect: challenges to the validity of closed shop agreements.
Agreements that in order to work in a certain industry, the trade union requires you to be a member.
This infringes of the negative right to NOT be a member of a trade union.

Question 2

What are the specific, individual rights in the right to organisation?

Answer 2

Not to be refused employment (TULRA s137).
Not to be blacklisted (Blacklisting Regulations).
Not to be discriminated against.

Question 3

What protections are available for the right not to be discriminated against, and who do they protect?

Answer 3

Workers, not to suffer detriment (TULRCA s146).

Employees, not to be dismissed (TULRCA s152).

Not to have ‘sweetener payment’ made (TULRCA ss145A-F).
Where an employer tries to bribe/convince an employee not to become a member of a trade union.
Introduced to comply with ECtHR judgment on the Wilson v Palmer case.

Question 4

What does TULRCA s137(1) provide for refusal of employment?

Answer 4

It is unlawful to refuse a person employment:

because he is, or is not, a member of a trade union,

because he is unwilling to accept a requirement –
to take steps to become or cease to be, or to remain or not to become, a member of a trade union.

Question 5

How does TULRCA s137(5) define ‘refusal’ of employment?

Answer 5

‘Refusal’ is defined very broadly:
Refusal to process application or enquiry.
Causing applicant to withdraw application.
Making offer of employment on wholly unreasonable terms.
Retracting offer of employment.

Question 6

What does TULRCA s138 provide for refusal of employment?

Answer 6

Similar provision is applied to employment agencies.

Question 7

What are the s140 remedies for refusal of employment?

Answer 7

Compensation and a (non-enforceable) recommendation.

Question 8

What provision does s142 give us for compensation?

Answer 8

Awards of compensation can be made against third parties e.g. to a trade union seeking to enforce a closed shop agreement.

Question 9

How does s137 limit refusal of employment protections?

Answer 9

‘Refusal of employment on grounds related to trade union membership’ does not refer to ‘union activities’.

Question 10

What does Harrison v Kent County Council [1995] tell us about the scope of protection for refusal of employment?

Answer 10

Employment Appeal Tribunal: Employment Tribunal was wrong to draw a rigid distinction between membership of trade union and taking part in union activities.

Overruled in the Wilson case in the House of Lords.
Held that this is not what the legislation says so we can’t read it that way.
ECtHR held that taking part in trade union activities also deserves protection.
Interpretation of s137 in light of Wilson v UK.

Question 11

What are the further issues around refusal of employment?

Answer 11

Concealing trade union membership / activities and dismissal –> s152.

Previous trade union activities.
Fitzpatrick v British Railways Board [1992].
- Protection covers both pre-employment and post-employment screenings.

Question 12

How does TULRCA ss146-167 provide for protection against discrimination at work?

Answer 12

Once in employment, the worker/employee is protected from hostile acts by their employer on the grounds of:
Trade union membership.
Participation in trade union activities.
For making use of trade union services.

Note: once at work, the material scope here becomes broader…

Question 13

What are the protections available against hostile acts, and to whom are they available?

Answer 13

Subject to detriment (s146).
- Workers and employees.

Dismissal (s152).
- Employees.
But detriment for workers can cover dismissal (s146(5)).

Being offered inducements (ss145A and 145B).

Incentives to not be a trade union member.
Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47.

Note: no qualifying period of employment.

Question 14

S146 sets out for protections against detriment. What does it say?

Answer 14

(as amended in 1999 and 2004):

Right not to be subjected to ‘detriment’ on grounds related to:
(a) Union membership.
(b) Union activities.
(ba) Making use of trade union services.

Question 15

What protections are available against detriment?

Answer 15

(On activities) Mercer v Alternative Future Group Ltd & Anor [2022].

(On appropriate time) Brennan and Ging v Ellward (Lancs) Ltd [1976].

Act or omission.
Can amount to dismissal, but only for workers who are not employees (s146(5A)).

Remedies?
Declaration and compensation as court considers just and equitable in all the circumstances (s149).

Question 16

How do ss146(2A) and 152(2A) define ‘making use of the services of a trade union’?

Answer 16

‘Services available to the worker by an independent trade union by virtue of his membership of the union’.

Being represented by a trade union; or
Having one’s concerns raised by a trade union.

Question 17

How does s145B(4) expand of the definition of’ making use of the services of a trade union’?

Answer 17

‘Having terms of employment determined by collective agreement shall not be regarded for the purposes of s145A (or s146 or 152) as making use of a trade union service’.

Question 18

Is collective bargaining included in protection against detriment?

Answer 18

Collective bargaining issues are expected to be treated under s145B and s152(1)(bb) on inducements, offering incentives to forego collective bargaining.

Question 19

Is there a protection gap for detriment?

Answer 19

Court of Appeal decision in Therm A Stor v Atkins and Carrington [1983].
Employees dismissed in reaction to a letter from their union seeking recognition were considered not to take part in the activities of the union.

Article 11 ECHR?

Question 20

How does Mercer v Alternative Future Group Ltd & Anor [2022] EWCA Civ 379 tell us about whether industrial action is included in s146 protection against detriment?

Answer 20

Protection from detriment when taking part in industrial action under s146 TULRCA.

Ms Mercer, a workplace rep, organised and took part in lawful industrial action. She was suspended and given a warning.
Claimed that this amounted to detriment under s146.

Is participation in industrial action covered by s146?
On a strict reading of the statutory provision, no (Court of Appeal).

But how about the purpose of the legislation?
How about Art 11 ECHR? Appeal at the SC allowed. Date for the hearing pending.

Question 21

What does ‘at an appropriate time’ mean for the purposes of protection against detriment?

Answer 21

Outside of working hours, or, if during working hours, then with the consent of the employer.

See ss146(2) and 152(2).

Question 22

To what, and whom does protection against dismissal extend?

Answer 22

Only available to employees….

TULRCA s152 (as amended in 2004):
Right not to be unfairly dismissed on grounds related to union membership, activities, or making use of services.
Ss152-167 modify the application of the general law on unfair dismissal (Employment Rights Act 1996 Part X).

Question 23

What remedies are available under s152 protection from dismissal?

Answer 23

‘Interim relief’ (ss161-166).
Minimum basic award of £7,836 (s156).
Compensatory award for financial loss (ERA 1996 s124).
Additional award (capped) (ERA 1996 s117).

Question 24

What are discriminatory inducements?

Answer 24

Inducements to give up trade union membership, trade union activities, or the use of trade union services (s145A) and/or to give up collective bargaining protection (s145B).

Question 25

What is the s145 protection from inducements?

Answer 25

S145A and 145B: rights not to suffer a detriment or dismissal because of failure to accept such an inducement.

Protection extends only to those who are offered an inducement and not to those who are not recipients of such an offer.

S145B applies only for the purposes of collective bargaining when the trade union is recognised or seeking to be recognised by the employer.

Question 26

What remedies are available under protection against inducements?

Answer 26

S145E.
Employment tribunal declaration.
Compensatory award.

Question 27

What does Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47 tell us about protection from inducements?

Answer 27

Under s145B.

Employer made payment offer that would require workers who are trade union members to agree to forego collective bargaining rights.

UKSC held that an employer cannot make a direct offer to its workers, including union members, before the collective bargaining process which the employer has agreed (albeit in honour only) to follow has been exhausted.

Question 28

What is blacklisting and what protections are available against it?

Answer 28

Background:
Scandal revealed that companies in a certain sector collaborated and made a list of people who were trade union activists in the sector. They exchanged information about them and made it impossible for these people to find work in the sector.

Employment Rights Act 1999, but no regulations.
Blacklisting Regulations 2010.

Reg 3 prohibition of compilation, use, sale or supply of a ‘prohibited list’.

Regs 5, 6, 9, 12 unlawful to refuse to employ, deny employment/ agency services, subject to detriment, dismiss.

Question 29

What remedies are available for blacklisting?

Answer 29

Slightly different for reg 5 & 6, and 9 (detriment) and 12 (dismissal).
But main focus on declaration & compensation rather than reinstatement.

No retrospective effect.