The Right to Organise (L8) Flashcards
What are the positive and negative aspects of the right to organise?
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.
What are the specific, individual rights in the right to organisation?
Not to be refused employment (TULRA s137).
Not to be blacklisted (Blacklisting Regulations).
Not to be discriminated against.
What protections are available for the right not to be discriminated against, and who do they protect?
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.
What does TULRCA s137(1) provide for refusal of employment?
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.
How does TULRCA s137(5) define ‘refusal’ of employment?
‘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.
What does TULRCA s138 provide for refusal of employment?
Similar provision is applied to employment agencies.
What are the s140 remedies for refusal of employment?
Compensation and a (non-enforceable) recommendation.
What provision does s142 give us for compensation?
Awards of compensation can be made against third parties e.g. to a trade union seeking to enforce a closed shop agreement.
How does s137 limit refusal of employment protections?
‘Refusal of employment on grounds related to trade union membership’ does not refer to ‘union activities’.
What does Harrison v Kent County Council [1995] tell us about the scope of protection for refusal of employment?
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.
What are the further issues around refusal of employment?
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.
How does TULRCA ss146-167 provide for protection against discrimination at work?
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…
What are the protections available against hostile acts, and to whom are they available?
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.
S146 sets out for protections against detriment. What does it say?
(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.
What protections are available against detriment?
(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).
How do ss146(2A) and 152(2A) define ‘making use of the services of a trade union’?
‘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.
How does s145B(4) expand of the definition of’ making use of the services of a trade union’?
‘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’.
Is collective bargaining included in protection against detriment?
Collective bargaining issues are expected to be treated under s145B and s152(1)(bb) on inducements, offering incentives to forego collective bargaining.
Is there a protection gap for detriment?
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?
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?
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.
What does ‘at an appropriate time’ mean for the purposes of protection against detriment?
Outside of working hours, or, if during working hours, then with the consent of the employer.
See ss146(2) and 152(2).
To what, and whom does protection against dismissal extend?
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).
What remedies are available under s152 protection from dismissal?
‘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).
What are discriminatory inducements?
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).
