Trade unions: recognition, collective bargaining, and industrial action

Key Facts

• The Certification Officer among other mattes decides whether a trade union is entitled to be treated as
• An independent trade union needs to be recognised by the employer in order to enjoy a number of important statutory
• Employers have a duty to disclose to trade unions recognised for collective bargaining purposes information without which they would be impeded in carrying out collective bargaining.
• It is unlawful to dismiss or subject to detriment someone for the purpose of preventing them from joining, or taking part in the activities of, a trade
• Statutory immunity is given only to industrial action taken in contemplation or furtherance of a trade

Independence and recognition

An official called the Certification Officer maintains a list of trade unions. (The Certification has a number of functions and the officer’s powers have been expanded by the Trade Union Act 2016, a statute which changes the Officer’s role and led to the resignation of the then Certification Officer.) A trade union whose name is on the list can apply to the Certification Officer for a certificate that it is independent. The Certification Officer is responsible for keeping a record of all applications and must decide whether the applicant union is independent or not.

• Section 5 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) deems a trade union to be independent if it is not under the domination or control of an employer or a group of employers or of one or more employers’ associations; and it is not liable to interference by an employer or any such group or association, arising out of the provision of financial or material support or by any other means whatsoever, tending towards such control.

Over the years, certain criteria have evolved for assessing whether a union is under the domination or control of an employer.

A Monk Staff Association v Certification Officer and ASTMS [1980] IRLR 431

The Employment Appeal Tribunal (EAT) confirmed that matters such as the union’s history, its organisation and structure, its finances, and the extent of employer-provided facilities were relevant. The Court of Appeal has also ruled that the Certification Officer is not required to assess the likelihood of interference by the employer. The degree of risk is irrelevant so long as it is recognisable and not insignificant.

There are some important advantages for trade unions that are ‘independent’. If recognised by the employer they have the right to appoint safety representatives, their representatives are entitled to receive information for collective bargaining purposes (see ‘Disclosure of information for collective bargaining’) and may be consulted in respect of redundancies and transfers of undertakings (see chapter 11, ‘Information and consultation’). Their officials can take time off for union activities.

These rights accrue only if the employer recognises the trade union. There is a statutory definition of recognition contained in s 178(3) TULRCA. (This definition does not apply to statutory recognition.) Collective bargaining means negotiations relating to or connected with one or more of the matters specified in s 178(2) TULRCA. Although the question of recognition is one of fact for a court or employment tribunal to decide, it is likely that there must be an express or implied agreement between the union and the employer to negotiate on one or more of the matters listed. For agreement to be implied there must be clear and unequivocal conduct over a period of time. Thus, a discussion on wages that took place on a particular occasion was held to be insufficient to establish recognition, particularly when the employer’s attitude was one of refusing to bargain (see NUGSAT v Albury Bros [1978]).

It is also possible for a trade union to claim a statutory right to recognition by the employer. The rules are contained in Sch A1 TULRCA. Statutory recognition covers only ‘pay, hours, and holidays’, a phrase which includes rostering (BALPA v Jet2.com [2017]) but excludes pensions. This definition is much narrower than that for voluntary recognition, and indeed the statutory scheme is aimed at encouraging voluntary recognition.

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Although this procedure enables a trade union to compel an employer to recognise a trade union for specific purposes, it has only been used sparingly. This is because some employers agreed to recognition in anticipation of the union being successful in its claim and also because a voluntary agreement is more likely to be of benefit to both sides than an imposed one.

The Trade Union Act 2016 affects the functions of the Certification Officer but not in relation to the above.

The legal enforceability of collective agreements

A collective agreement is defined in s 185 TULRCA as any agreement or arrangement made by, or on behalf of, one or more trade unions and one or more employers, or employers’ associations, which relates to one or more of the matters mentioned in s 178(2) TULRCA.

A collective agreement is conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement is in writing and contains a provision that states that the parties intend the agreement to be a legally enforceable contract (s 179 TULRCA), or the agreement has been specified by the Central Arbitration Committee (CAC), as a result of the statutory recognition procedures. Equally, the parties may declare that one or more parts only of an agreement are intended to be legally enforceable.

Disclosure of information for collective bargaining

For the purposes of all the stages of collective bargaining between employers and representatives of recognised independent trade unions, employers have a duty to disclose to those representatives, on request, all such information relating to their undertakings as is in their possession or that of any associated employer, which is both (s 181 TULRCA) information without which the union representatives would be to a material extent impeded in carrying on such collective bargaining and information that it would be in accordance with good industrial relations practice that they should disclose.

An employer can insist that a request for information must be made in writing, and likewise the information itself must be in written form, if that is the wish of the union representatives.

The information can be sought in order to prepare a claim, although it must relate to matters in respect of which the union is recognised.

R v CAC, ex parte BTP Tioxide [1982] IRLR 61

The High Court held that the union was entitled to information relating to a job evaluation scheme in respect of which it had no bargaining rights but only the right to represent its members in re-evaluation appeals. Essentially, for information to be disclosed under these provisions it must be both relevant and important. Although each case must be judged on its merits, unions may be entitled to information about groups not covered for collective bargaining purposes.

Attention needs to be given to the ACAS Code of Practice on Disclosure of Information to Trade Unions for Collective Bargaining Purposes 2003. To decide what information is relevant, negotiators are advised to take account of the subject matter of the negotiations and the issues raised during them, the level at which negotiations take place, the size of the company, and its type of business.

The duty to disclose is subject to the exceptions detailed in s 182 TULRCA. Employers are not required to disclose information:

• the disclosure of which would be against the interests of national security;

• that could not be disclosed without contravening other legislation;

• that has been communicated to the employer in confidence;

• relating specifically to an individual unless he or she has consented to its disclosure;

• the disclosure of which would cause substantial injury to the employer’s undertaking for reasons other than its effect on collective bargaining;
• obtained by the employer for the purpose of bringing or defending any legal proceedings.

Section 182(2) TULRCA provides that employers are not obliged to produce, allow inspection of, or copy, any document other than a document conveying or confirming the information disclosed, and are not required to compile any information where to do so would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining.

A union that feels that its representatives have not received the information to which they are entitled can complain to the CAC. If the complaint is upheld, the declaration will specify the information in respect of which the CAC believed the complaint to be well founded, the date on which the employer refused or failed to disclose information, and the period within which the employer ought to disclose the information specified (s 183 TULRCA). If the employer still does not cooperate then the CAC, after hearing the parties, awards the terms and conditions detailed in the claim or others that it considers appropriate. Such an award will relate only to matters in respect of which the trade union is recognised. The terms and conditions awarded take effect as part of the contracts of employment of the employees covered.

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The provisions concerning the obligation of the employer to provide information are very weak. It is interesting that all through the period when legislation weakening trade unions was being adopted in the 1980s and 1990s, these provisions were left untouched.

Protection for trade unionists

• Section 137(1) TULRCA makes it unlawful to refuse employment to people because they are or are not members of a trade union, or because they refuse to accept a requirement that they become a member or cease to be a member, or to impose a requirement that they suffer deductions if they fail to join.

With regard to job advertisements, if one indicates, or might reasonably be understood as indicating, that employment is open only to people who are or are not union members, then if people who do not meet the relevant condition are refused employment, it will be conclusively presumed that this was because they failed to satisfy the condition.

Section 138 makes it unlawful for an agency that finds employment for workers, or supplies employers with workers, to refuse its services to people because they are or are not union members or are unwilling to accept a condition or requirement of the type mentioned in s 137(1)(b). The provisions relating to advertisements also apply to such agencies. A complaint about the infringement of these provisions must normally be presented to an employment tribunal within three months of the date of the conduct complained about.

Provision is made for conciliation, but if a complaint is upheld, the tribunal must make a declaration to that effect and may make an order obliging the respondent to pay compensation, which is to be assessed on the same basis as damages for the tort of breach of statutory duty and may include damages for injury to feelings.

Section 145B makes it unlawful for employers to offer incentives to workers with the sole or main purpose of undermining collective bargaining by a union. In Dunkley v Kostal UK Ltd [2019] the Court of Appeal held that this provision does not apply if the employers’ purpose is to provide for a one-off situation as opposed to something offered ona permanent basis. At the time fo writing (January 2021) the decision of the Supreme Court is awaited.

Section 146 TULRCA gives employees the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by an employer if the act or failure takes place for the purpose of preventing or deterring them from being or seeking to become members, or taking part in the activities, of an independent trade union or penalising them for doing so. Section 152 also makes a dismissal unfair if the reason was that the employee was or proposed to become a member of an independent trade union or take part in its activities.

Industrial action

The statutory immunity in tort for various types of industrial action depends on that action taking place in contemplation or furtherance of a trade dispute. This is the so-called ‘golden formula’. So long as the action taken is in contemplation or furtherance of a trade dispute, the TULRCA immunities apply irrespective of whether or not the action is in breach of a disputes procedure.

However, if the ‘golden formula’ does not apply, it will be relatively easy for an employer to show that at least one of the economic torts is being committed, and to obtain an interim injunction on that basis.

Revision tip

Industrial action taken in contemplation or furtherance of a trade dispute is provided with immunity from action in tort. You should point out that the most common torts are likely to be inducing a breach of contract, interference with a contract or business, intimidation, and conspiracy. Torts other than the economic torts do not fall within this law and therefore unions are liable for these torts used when the golden formula applies.

Section 244 TULRCA defines a trade dispute as a dispute between workers and their employer that relates wholly or mainly to one or more of the following:

• terms and conditions of employment, or the physical conditions in which any workers are required to work;
• engagement or non-engagement, or termination or suspension of employment, or the duties of employment of one or more workers;
• allocation of work or the duties of employment as between workers or groups of workers;
• matters of discipline;

• the membership or non-membership of a trade union on the part of a worker;

• facilities for officials of trade unions; and

• the machinery for negotiation or consultation and other procedures relating to any of the foregoing matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation, or consultation, or in the carrying out of such

University College London Hospital NHS Trust v UNISON [1999] IRLR 31

The union gained an overwhelming majority in favour of strike action in support of a demand for employment guarantees associated with the building of a new hospital under the Private Finance Initiative (PFI). This would have involved the transfer of some workers to a new employer. The Court of Appeal held that the dispute was about terms and conditions that would apply to workers not currently employed by the NHS Trust and that such a dispute about future employment with a new employer was outside the provisions of s 244.

A ‘worker’ is defined to cover only those employed by the employer in dispute. The word ‘contemplation’ refers to something imminent or likely to occur, so the ‘golden formula’ cannot be invoked if the action was taken too far in advance of any dispute. ‘Furtherance’ assumes the existence of a dispute and an act will not be protected if it is not for the purpose of promoting the interests of a party to the dispute (e.g. if it is in pursuit of a personal vendetta) or occurs after its conclusion.

McShane v Express Newspapers [1980] IRLR 35

The House of Lords held that while the existence of a trade dispute had to be determined objectively, the test for deciding whether an act is in furtherance of such a dispute is a subjective one: ‘If the person doing the act honestly thinks at the time he does it that it may help one of the parties to the dispute to achieve their objective and does it for that reason, he is protected’ (per Lord Scarman).

Apparently, there is no requirement that a union should act exclusively in furtherance of a trade dispute; it is sufficient if the furtherance of a trade dispute is one of its purposes.

Ballots and notice of industrial action

Trade unions and their officials can benefit from immunity provided by s 219 TULRCA only if the union has authorised or endorsed the industrial action, having gained majority support in a ballot of the members concerned not more than four weeks before the start of the action. Industrial action in favour of other workers, often called ‘sympathy strikes’ or ‘secondary action’, such as non-NHS unions calling out members in support of striking nurses, is illegal. That illegality has been upheld by the European Court of Human Rights: National Union of Rail, Maritime and Transport Workers v UK [2014]. The Court held that while freedom of association is the subject of and protected by Art 11 European Convention on Human Rights, the government had a defence, a legitimate aim, within Art 11(2), protection of the rights and freedoms of others. Sympathy strikes can impinge on the rights of those not involved in the dispute and can cause disruption to the economy and disrupt services to the public. The Court also held that the ban was necessary in a democratic society within the words in Art 11(2). These strikes were not core union activities; because they were only ancillary, the state had a wide margin of appreciation to regulate unions’ conduct in this regard. National parliaments were in a better position than the Court in respect of determining whether such action should be lawful. The ban on secondary action had lasted for 20 or more years, and it had endured through several governments of various hues. Therefore, the consensus in the UK was that such action should remain unlawful.

For s 219 TULRCA immunity to be available, a number of detailed requirements must be met. These include the trade union sending out a notice of a ballot to its members; providing the employer with certain information about its membership and a sample of the ballot paper; sending out a ballot paper that will contain a statement specified in s 229 TULRCA, which warns the voter that taking part in a strike or other industrial action may be in breach of the contract of employment. It also, however, tells the voter that if he or she is dismissed for taking part in a strike or other industrial action that is called officially and is otherwise lawful, the dismissal will be unfair if it takes place less than eight weeks after he or she started taking part in the action, and depending on the circumstances may be unfair if it takes place later. The Trade Union Act 2016 added requirements that the union gives 14 days’ notice of industrial action (unless the parties agree on seven days’ notice), the union tells the employer which type of action will take place, the union notifies the employer whether the action will be continuous or discontinuous, and the union informs the employers which groups of workers and their location are being called on to take the action.

Members are also invited to vote for industrial action or action short of a strike. Industrial action will not be regarded as having the support of a ballot if a member who was likely to be induced into taking part in the action was not accorded the right to vote. As soon as is reasonably practicable after the ballot, the union must take such steps as are reasonably necessary to ensure that all those entitled to vote and every relevant employer are informed of the number of votes cast, the numbers voting ‘yes’ and those voting ‘no’, and the number of spoiled ballot papers. If there is a failure to inform one or more relevant employers, the ballot and subsequent action will still be valid in relation to the other employers who were informed correctly (ss 231–231A TULRCA). After this, the union must provide written notice to the employer of the industrial action to be taken and when. In the first High Court case on this point after the Trade Union Act 2016 came into force on 1 March 2017, Thomas Cook Airlines Ltd v. British Airline Pilots Association [2017] Lavender J held that the ballot paper need only relate to the periods during which industrial action may take place and need not specify the dates when such action will take place. The Act reduces the period at the end of which the ballot loses its effect to six months, but the union can put that six-month period on the ballot. This decision provides the parties to the dispute with the flexibility they need to come to a settlement.

Unions have for a long time complained that the law restricts ballots to ones conducted via the post, arguing that electronic ballots are faster and cheaper to run than postal ones as well as producing higher turnouts. During debates on the Trade Union Act 2016, the government agreed under pressure to institute a review of such balloting. It could hardly do otherwise when, for example, ballots within the Conservative Party, including votes for the leader, are conducted electronically. The review under Sir Ken Knight was published in December 2017. It proposed pilots on non-statutory votes (e.g. testing the water for support for a strike, which unions already perform electronically). This outcome unsurprisingly has disappointed unions. The government appears still be thinking about electronic ballots.

The Trade Union Act 2016 affects the law stated in the previous section of this book. In particular, pre-industrial action ballots are valid only if 50% of eligible voters turn out to vote; and 40% of those eligible to vote must vote in favour of the action where the action is to involve an essential public service; unions have to give 14 days’ notice of industrial action rather than seven (this works as a cooling-off period); and there is a time limit of four months placed on how long a ballot will remain valid for. New union members have to opt in to the political fund.

Revision tip

You need to be aware of why the procedural rules for calling industrial action are so complex. They are designed to discourage unions from taking such action.

Remedies

Section 22(2) TULRCA limits the amount of damages that can be awarded ‘in any proceedings in tort’ against a trade union that is deemed liable for industrial action. The words ‘in any proceedings’ are crucial, since separate proceedings may be brought by all those who have suffered from the industrial action. The limits set are between £10,000 and £250,000, depending upon the size of the union. These amounts were set in the 1980s and have not been amended since.

Injunctions

If an employer is suffering economic harm as a result of unlawful industrial action, the employer may resort to seeking an injunction to stop the action. In situations of extreme urgency an interim injunction can be sought. This is a temporary measure that endures until a named day and can be obtained on the basis of sworn statements submitted by the applicant alone. If the respondent is absent, this used to be known as an ex parte (one-sided) injunction and is now known as a ‘without notice’ injunction. According to s 221 TULRCA, a court shall not grant an application if the party against whom the injunction is sought claims (or in the court’s opinion might claim) that the act was done in contemplation or furtherance of a trade dispute unless all reasonable steps have been taken to give that party notice of the application and an opportunity of being heard.

Before granting an interim injunction, a judge will have to consider the following questions.

• Is there a serious question to be tried?

• Does the balance of convenience lie with the claimant?

• Where the party against whom the injunction is sought claims that the action was in contemplation of furtherance of a trade dispute, is there a likelihood of the defendant establishing a defence to the action under s 219 or 220 TULRCA?

In exercising its discretion, a court will need to take into account the possibility of a defendant succeeding in establishing a trade dispute defence.

NURMTW v Serco Ltd [2011] IRLR 399

This concerned a union’s failure to include a small number of people in the ballot for strike action. The Court of Appeal allowed an appeal against an interim injunction saying that accidental errors should not invalidate the ballot.

Failure by union officials to comply with an injunction may amount to contempt of court, for which the union is vicariously liable.

Acts done in the course of picketing are illegal unless the picketing falls within the immunity conferred within s 220 TULRCA. This immunity does not extend to the non- economic torts such as nuisance and trespass and it does not extend to crimes. By s 219(3), picketing is also unlawful if it is not at or near the picket’s place of work. This provision is aimed at prohibiting secondary picketing; that is, picketing in support of those taking industrial action elsewhere.

The law on picketing has been further narrowed by the Trade Union Act 2016. There has to be a ‘picket supervisor’ appointed by the union, and the union has to give advance notice of the picket line to the police.

Intriguingly, and for the first time, the Welsh Assembly has voted to repeal several sections of the Trade Union Act 2016, in particular the provision on the 40% threshold on industrial action ballots involving important public services: see ‘Ballots and notice of industrial action’, above. This is a devolved matter. Who would have believed that Wales and England would have different employment laws! The gig economy discussed in chapter 1 may sound new and trendy with its apps and bookings via the internet but it isn’t; but Wales and England have not have separate employment law since the Laws in Wales Acts 1535 and 1542.

The delights of Brexit have run their course with the transition period having expired and after Brexit the former Prime Minister Mrs May promised to look again at the European Convention on Human Rights. Reform, possibly repeal, remain on the agenda of some Conservstives. For employment law, we live in interesting times: the ground is shifting beneath our feet.

Key cases

Case	Facts	Principle
McShane v Express Newspapers [1980] IRLR 35	The National Union of Journalists staged a strike against provincial newspapers and called for action by members not directly working for these newspapers.	While the existence of a trade dispute has to be determined objectively, the test for deciding whether an act is in furtherance of such a dispute is a subjective one. Lord Scarman said: ‘If the person doing the act honestly thinks at the time he does it that it may help one of the parties to the dispute to achieve their objective and does it for that reason, he is protected.’
A Monk Staff Association v Certification Officer and ASTMS [1980] 1 IRLR 431	A staff association applied for a certificate of independence.	The Certification Officer is not required to assess the likelihood of interference by the employer. The degree of risk is irrelevant so long as it is recognisable and not insignificant.
R v CAC, ex parte BTP Tioxide [1982] IRLR 61	A union sought disclosure of information about a job evaluation scheme, but the employers refused, arguing that the union was not recognised for collective bargaining purposes with regard to the information sought.	The union was entitled to information relating to a job evaluation scheme in respect of which it had no bargaining rights but only the right to represent its members in re-evaluation appeals. Essentially, for information to be disclosed under these provisions it must be both relevant and important. Although each case must be judged on its merits, unions may be entitled to information about groups not covered for collective bargaining purposes.
University College London Hospital NHS Trust v UNISON [1999] IRLR 31	The union gained an overwhelming majority in favour of strike action in support of a demand for employment guarantees associated with the building of a new hospital.	The dispute was about terms and conditions that would apply to workers not currently employed by the NHS Trust and that such a dispute about future employment with a new employer was outside the provisions of s 244 TULRCA.

Exam questions

Problem question

Meena and Sonya are members of the National Workers Union, which is an independent union recognised by the employer for whom they both work.

The employer has withdrawn from a collective agreement reached with the union and is proposing not to give their employees the previously agreed pay rise.

Meena is outraged and wants the union to take legal action against the employer for breaking an agreement.

Sonya is also very angry and wants to call all the affected employees together and have a vote on strike action to start immediately.

Consider the legal principles at issue on these facts.

See the Outline answers section for help with this question.

Exam questions

Essay question

The statutory controls on trade unions are necessary to make sure that they do not take industrial action too easily and damage the economy.

Discuss.

Online Resources

To see an outline answer to this question log on to www.oup.com/lawrevision/

Concentrate Q&As

For more questions and answers on employment law, see the Concentrate Q&A: Employment Law by Roseanne Russell.