Law at Work 2019 - the trade union guide to employment law (May 2019)



[pages 15-16]

This 31st edition of Law at Work is published at a time of great political and economic uncertainty. The UK government’s efforts to negotiate an exit from the European Union (EU) are putting workers’ rights at risk while at the same time deflecting attention from pressing concerns such as the continued growth of low paid and insecure jobs. In 2019, 70% of children in poverty live in working families. 

Given the extent of political preoccupation with Brexit, it is perhaps unsurprising that legislation is largely unchanged since the last edition of Law at Work. Nevertheless, employment law has continued to evolve as a result of important judicial rulings, many instigated by unions. There has been an upsurge in new single employment tribunal claims following the successful challenge by public services union UNISON to tribunal fees. A 31% increase year-on-year reflects the high number of litigants who were denied access to justice by the fee regime. There is evidence that under-resourced tribunals are struggling with the increased caseload, leading to hearing delays and a steep rise in the backlog of cases.

In relation to recent tribunal cases, the past year has seen fresh developments in laws on employment status, in general moving in the direction of establishing worker status, following the landmark victory against transport provider Uber (see Chapter 2). In 2019, general union GMB built on these rulings to negotiate the first UK deal to provide trade union recognition for gig economy workers, with a collective agreement on hourly rates and holiday pay with courier firm Hermes (see box on page 64).

Another milestone was the successful conclusion of an eight-year battle by independent union the Pharmacists Defence Association Union (PDAU) to secure collective bargaining rights at high street chemist Boots, ending with a 92.4% vote in favour of the union. To secure recognition, PDAU members had to achieve a legal first — the statutory derecognition of a sweetheart union (see Chapter 5). There have also been new rulings on unlawful inducements to end collective bargaining and on interpreting the additional balloting and notice provisions added by the Trade Union Act 2016. 

As always, there have also been troubling rulings. Two stand out. Deliveroo cycle couriers were not allowed to access the statutory recognition procedure, despite strong evidence of support for their union, the Independent Workers of Great Britain, because a “substitution” clause inserted into the standard contract terms allowed them to send another rider in their place. According to the High Court, this state of affairs did not infringe Article 11 of the European Convention on Human Rights (the right to freedom of association). The case demonstrates once again how in the UK, those with the most precarious working conditions have the fewest employment rights. In another example, industrial action is now taking hold in the care sector, as wages are cut following a Court of Appeal ruling that a careworker asleep on a sleep-in shift in a service user’s home is not “working” for the purposes of the National Minimum Wage, a ruling which, as UNISON points out, flouts any common sense understanding of the meaning of work. The union is bringing an appeal to the Supreme Court. 

About Law at Work 2019 

Law at Work is designed as an essential tool for negotiators, reps and members, and as a means for trade unionists to keep up-to-date with employment law changes. This revised and updated edition provides the basic information reps need to understand the law, to make their case as clearly as possible to their employer and to win further victories for their members through negotiation and persuasion. Law at Work is supported by an advice line available to LRD-affiliated organisations.

Unlike most other employment law guides, LRD’s Law at Work examines the law from the perspective of trade unions and workers. While not designed to enable an individual or union rep to take a claim right through the court process, it indicates where the relevant law can be found, highlights what has changed and what has stayed the same, and provides up-to-date examples of the law in action.
The LRD’s Case Law at Work series of booklets provides case summaries in greater detail and can be read as a companion to this booklet. 

Most trade unions offer their members a legal advice service and any member or rep contemplating taking a legal case should contact their union first. In some unions, tribunal cases will be handled internally at district, regional or even head office level. This booklet does not contain individual legal advice and must not be relied on as such. 

Law at Work 2019 refers to the legislation as it applies to England, Wales and Scotland (although there are some variations in Scotland). However, many of the principles also apply in Northern Ireland, which has its own legislation but with a broadly similar structure. (The key differences are set out in the box on page 29.)

This information is copyright to the Labour Research Department (LRD) and may not be reproduced without the permission of the LRD.